Cook Children's Brief of Appellee

ACCEPTED
02-20-00002-CV
SECOND COURT OF APPEALS
FORT WORTH, TEXAS
1/22/2020 10:50 AM
DEBRA SPISAK
No. 02-20-00002-CV
CLERK
IN THE SECOND COURT OF APPEALS

FORT WORTH, TEXAS
T.L., A MINOR AND HER MOTHER, ON HER BEHALF,

Appellants,
v.
COOK CHILDREN’S MEDICAL CENTER,

Appellee.
On Appeal from the 48th District Court

Tarrant County, Texas, Cause No. 048-112330-19
BRIEF OF APPELLEE
Thomas M. Melsheimer Amy Warr

Texas Bar No. 13922550 State Bar No. 00795708
tmelsheimer@winston.com awarr@adjtlaw.com
Steven H. Stodghill Nicholas Bacarisse
State Bar. No. 19261100 State Bar No. 24073872
sstodghill@winston.com nbacarisse@adjtlaw.com
Geoffrey S. Harper ALEXANDER DUBOSE & JEFFERSON LLP
State Bar No. 00795408 515 Congress Avenue, Suite 2350
gharper@winston.com Austin, Texas 78701-3562
Thomas B. Walsh, IV Telephone: (512) 482-9300
State Bar No. 00785173 Facsimile: (512) 482-9303
John Michael Gaddis
State Bar No. 24069747
mgaddis@winston.com
WINSTON & STRAWN LLP
2121 N. Pearl Street, Suite 900
Dallas, Texas 75201
Telephone: (214) 453-6500
Facsimile: (214) 453-6400
ATTORNEYS FOR APPELLEE

Oral Argument Conditionally Requested
IDENTITY OF PARTIES AND COUNSEL
Appellants: T.L., a minor, and her mother, on her behalf.
Trial & Appellate Counsel: Joseph M. Nixon

joe@nixonlawtx.com
THE NIXON LAW FIRM, P.C.
6363 Woodway, Suite 800
Houston, Texas 77056
Telephone: (713) 550-7535
Emily Cook
emily@emilycook.org
4500 Bissonnet
Bellaire, Texas 77401
Telephone: (281) 622-7268
Kassi Dee Patrick Marks

kassi.marks@gmail.com
2101 Carnation Ct.
Garland, Texas 75040
Telephone: (214) 668-2443
Appellee: Cook Children’s Medical Center
Trial and Appellate Counsel: Thomas M. Melsheimer

Texas Bar No. 13922550
tmelsheimer@winston.com
Steven H. Stodghill
State Bar. No. 19261100
sstodghill@winston.com
Geoffrey S. Harper
gharper@winston.com
i
Thomas B. Walsh, IV
John Michael Gaddis
mgaddis@winston.com
Dallas, Texas 75201
Telephone: (214) 453-6500
Facsimile: (214) 453-6400
Amy Warr
awarr@adjtlaw.com
Nicholas Bacarisse
nbacarisse@adjtlaw.com
ALEXANDER DUBOSE & JEFFERSON LLP
515 Congress Avenue, Suite 2350
Austin, Texas 78701-3562
Telephone: (512) 482-9300
Facsimile: (512) 482-9303
ii
TABLE OF CONTENTS
Identity of Parties and Counsel ..................................................................................i

Table of Contents .................................................................................................... iii
Index of Authorities .................................................................................................vi
Statement of the Case................................................................................................x
Issues Presented .......................................................................................................xi
Statement Regarding Oral Argument .................................................................... xii

Introduction ...............................................................................................................1
Statement of Facts .....................................................................................................2
A. T.L.’s health is severely compromised. ...............................................3
B. T.L. has been afforded aggressive, state-of-the-art treatment at

Cook Children’s. ..................................................................................5
C. After the July 2019 crisis, T.L.’s already-slim hopes for

recovery disappeared. ...........................................................................5
D. Continued treatment in the CICU causes T.L. to suffer.......................7
E. Performing painful intervention on T.L. with no clinical benefit

conflicts with the CICU staff’s ethics and conscience.........................8
F. The CICU staff made comprehensive efforts to transfer T.L. to

another hospital that would carry out her mother’s wishes, but
every hospital refused.........................................................................10
G. At an impasse, the CICU physicians requested a consult from

the Cook Children’s Ethics Committee..............................................11
H. The Ethics Committee determined that Cook Children’s could

not ethically continue to participate in providing T.L. artificial
life-support. ........................................................................................11
I. T.L.’s mother sued Cook Children’s. .................................................13
iii
Summary of Argument ...........................................................................................15
Argument.................................................................................................................19
I. The doctor-patient relationship is a voluntary arrangement between
two parties each, guided by her own judgment, conscience, and ethics. .....20
A. Physicians have a common-law right to refuse to provide care

inconsistent with their conscience or ethics. ......................................20
B. Section 166.046 was enacted to help resolve private

disagreements between patients and physicians regarding care. .......22
II. Appellants’ constitutional claims are premised on a misreading of

§166.046. ......................................................................................................26
A. Section 166.046 is a voluntary safe-harbor provision that does

not grant physicians any rights they did not have prior to the
statute’s enactment. ............................................................................27
B. A means of challenging §166.046’s constitutionality is

available, but Appellants consciously chose not to pursue it.............30
III. Section 166.046’s procedure is constitutional. .............................................33

A. Section 166.046 does not deprive Appellants of any
constitutionally protected interest. .....................................................34
1. Utilization of the §166.046 procedure does not deprive a
patient of life. ...........................................................................34
2. Utilization of the §166.046 procedure does not deprive

Appellants of their right to make medical decisions. ..............37
3. Utilization of §166.046’s procedure does not deprive

T.L.’s mother of her parental rights. ........................................43
B. Cook Children’s is not a state actor. ..................................................43
1. A private party’s use of a State-created procedure is not
state action................................................................................46
2. The State’s provision of safe harbor does not make Cook

Children’s a state actor.............................................................51
iv
3. There is no State coercion sufficient to deem Cook
Children’s actions those of the State........................................54
4. Cook Children’s has not been delegated a unique

governmental function. ............................................................57
Prayer ......................................................................................................................61
Certificate of Compliance .......................................................................................63
Certificate of Service ..............................................................................................64
v
INDEX OF AUTHORITIES
Cases
Abigail All. for Better Access to Developmental Drugs v. von
Eschenbach,
495 F.3d 695 (D.C. Cir. 2007) (en banc) ......................................................38, 39
American Mfrs. Mut. Ins. Co. v. Sullivan,

526 U.S. 40 (1999) ..................................................................................45, 52, 53
Baby F. v. Oklahoma Cnty. Dist. Ct.,

348 P.3d 1080 (Okla. 2015) ................................................................................41
Bass v. Parkwood Hosp.,
180 F.3d 234 (5th Cir. 1999) ..............................................................................48
Blum v. Yaretsky,
457 U.S. 991 (1982) .....................................................................................passim
Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n,
531 U.S. 288 (2001) ............................................................................................44
Brophy v. New England Sinai Hosp., Inc.,
497 N.E.2d 626 (Mass. 1986) .............................................................................36
Butnaru v. Ford Motor Co.,

84 S.W.3d 198 (Tex. 2002).................................................................................14
Communicon, Ltd. v. Guy Brown Fire & Safety, Inc.,
No. 02-17-00330-CV, 2018 WL 1414837 (Tex. App.—Fort Worth
Mar. 22, 2018, no pet.) (mem. op.) .....................................................................14
Cruzan v. Director, Mo. Dep’t of Health,

497 U.S. 261 (1990) ......................................................................................19, 33
Davis v. Prudential Secs., Inc.,
59 F.3d 1186 (11th Cir. 1995) ............................................................................59
DeShaney v. Winnebago Cty. Dep’t of Soc. Servs.,
489 U.S. 189 (1989) .....................................................................................passim
vi
Disability Rights Wis. v. University of Wis. Hosp. & Clinics,
859 N.W.2d 628 (Wisc. App. 2014) (unpublished)............................................40
Edmonson v. Leesville Concrete Co.,

500 U.S. 614 (1991) ............................................................................................46
Estelle v. Gamble,
429 U.S. 97 (1976) ..............................................................................................41
Flagg Bros., Inc. v. Brooks,

436 U.S. 149 (1978) ..........................................................................46, 50, 51, 53
Fought v. Solce,
821 S.W.2d 218 (Tex. App.—Houston [1st Dist.] 1991, writ
denied).................................................................................................................19
Georgia v. McCollum,
505 U.S. 42 (1992) ..............................................................................................46
Goss v. Memorial Hosp. Sys.,
789 F.2d 353 (5th Cir. 1986) ........................................................................44, 51
Gross v. Burt,
149 S.W.3d 213 (Tex. App.—Fort Worth 2004, pet. denied) ......................19, 51
Harris v. McRae,
448 U.S. 297 (1980) ......................................................................................39, 40
Hodge v. Paoli Mem’l Hosp.,

576 F.2d 563 (3d Cir. 1978) (per curiam) ....................................................44, 47
Jackson v. Metro. Edison Co.,

419 U.S. 345 (1974) ......................................................................................46, 56
Jenkins v. Colorado Mental Health Inst. at Pueblo,

215 F.3d 1337 (10th Cir. 2000) (unpublished) ...................................................41
Jennings v. Burgess,
917 S.W.2d 790 (Tex.1996)................................................................................30
Johnson ex rel. Johnson v. Thompson,

971 F.2d 1487 (10th Cir. 1992) ..........................................................................38
vii
King v. Fisher,
918 S.W.2d 108 (Tex. App.—Fort Worth 1996, writ denied) ...........................21
Klavan v. Crozer-Chester Med. Ctr.,

60 F. Supp.2d 436 (E.D. Pa. 1999) ...............................................................43, 44
Klunder v. Brown Univ.,

778 F.3d 24 (1st Cir. 2015) .................................................................................59
Lewis v. Law-Yone,
813 F. Supp. 1247 (N.D. Tex. 1993) ..................................................................48
Logan v. Zimmerman Brush Co.,

455 U.S. 422 (1982) ............................................................................................32
Long v. Nix,
86 F.3d 761 (8th Cir. 1996) ................................................................................41
Lugar v. Edmondson Oil Co.,
457 U.S. 922 (1982) ..........................................................................32, 43, 45, 46
Lund v. Giauque,
416 S.W.3d 122 (Tex. App.—Fort Worth 2013, no pet.)...................................31
Methodist Healthcare Sys. of San Antonio, Ltd. v. Rankin,

307 S.W.3d 283 (Tex. 2010) ..............................................................................31
N.L.R.B. v. Knoxville Pub. Co.,
124 F.2d 875 (6th Cir. 1942) ..............................................................................20
Newman v. Obersteller,
960 S.W.2d 621 (Tex. 1997) ..............................................................................30
Patel v. Texas Dep’t of Licensing & Regulation,

469 S.W.3d 69 (Tex. 2015).................................................................................32
People v. Privitera,
591 P.2d 919 (Cal. 1979) ....................................................................................39
In re Quinlan,
355 A.2d 647 (N.J. 1976) ...................................................................................35
viii
Rendell-Baker v. Kohn,
457 U.S. 830 (1982) ............................................................................................47
Republican Party of Tex. v. Dietz,

940 S.W.2d 86 (Tex. 1997).................................................................................32
S.P. v. City of Takoma Park, Md.,

134 F.3d 260 (4th Cir. 1998) ..............................................................................55
San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm.,

483 U.S. 522 (1987) ............................................................................................54
Sanchez v. Pereira-Castillo,
590 F.3d 31 (1st Cir. 2009) .................................................................................55
Simi Inv. Co. v. Harris Cty., Tex.,

236 F.3d 240 (5th Cir. 2000) ........................................................................32, 40
Tate v. D.C.F. Facility,
No. 4:07CV162-MPM-JAD, 2009 WL 483116 (N.D. Miss. Jan.
23, 2009) .............................................................................................................21
Texas Alcoholic Bev. Comm’n v. Live Oak Brewing Co.,
537 S.W.3d 647 (Tex. App.—Austin 2017, pet. denied) ...................................20
In re Tschumy,
853 N.W.2d 728 (Minn. 2014) ...........................................................................35
Tulsa Prof’l Collection Servs., Inc. v. Pope,
485 U.S. 478 (1988) ......................................................................................46, 59
University of Tex. Med. Sch. at Hous. v. Than,

901 S.W.2d 926 (Tex. 1995) ..............................................................................32
Vacco v. Quill,
521 U.S. 793 (1997) ..........................................................................33, 34, 36, 38
In re Wendland,
28 P.3d 151 (Cal. 2001) ......................................................................................41
West v. Akins,
487 U.S. 42 (1988) ........................................................................................48, 49
ix
Wheat v. Mass,
994 F.2d 273 (5th Cir. 1993) ..............................................................................47
White v. Scrivner Corp.,

594 F.2d 140 (5th Cir. 1979) ........................................................................51, 52
Yancy v. United Surgical Partners Int’l, Inc.,

236 S.W.3d 778 (Tex. 2007) ........................................................................30, 31
Youngberg v. Romeo,
457 U.S. 307 (1982) ............................................................................................41
Statutes and Constitutional Provisions

42 U.S.C. §1983 ..............................................................................................i, 12, 32
Act of May 11, 1999, 76th Leg., R.S., ch. 450, §3.05, 1999 Tex. Gen.
Laws 2865 ...........................................................................................................22
Emergency Medical Treatment and Labor Act, 42 U.S.C. §1395dd.......................41

TEX. CONST. art. I, §13 .............................................................................................30
TEX. CONST. art. I, §19 .............................................................................................32
TEX. HEALTH & SAFETY CODE §§166.001–.166 ......................................................26
TEX. HEALTH & SAFETY CODE §166.044 ...........................................................27, 34

TEX. HEALTH & SAFETY CODE §166.046 ..........................................................passim

TEX. HEALTH & SAFETY CODE §166.051 .................................................................26
TEX. OCC. CODE §160.010 .......................................................................................51
TEX. PENAL CODE §22.08(a) ....................................................................................34
U.S. CONST. amend. XIV, §1 ...................................................................................32
x
Other Authorities
AM. MED. ASS’N, COUNCIL ON ETHICAL & JUDICIAL AFFAIRS, CODE OF
MED. ETHICS (2016) ...........................................................................................20
Am. Med. Ass’n, Council on Ethical and Judicial Affairs, Physician-

Assisted Suicide, 10 ISSUES IN LAW & MEDICINE 91 (1994) ..............................35
CYNTHIA S. MARIETTA, THE DEBATE OVER THE FATE OF THE TEXAS
“FUTILE CARE” LAW: IT IS TIME FOR COMPROMISE 3 (April 2007) ....................23
Robert L. Fine, M.D., Medical futility and the Texas Advance

Directives Act of 1999, 13 B.U.M.C. PROCEEDINGS 144 (2000) ........................25
Hearing on C.S.S.B. 439 before the Senate Comm. on Health &

Human Servs., 80th Leg., R.S. (April 12, 2007) ................................................24
Hearing on H.B. 3527, Comm. on Pub. Health, 76th Leg., R.S. (Apr.
29, 1999) .............................................................................................................22
MARTIN A. SCHWARTZ, SECTION 1983 LITIG. CLAIMS & DEFENSES

§5.14[A] ..............................................................................................................57
Sen. Research Ctr., Bill Analysis, Tex. S.B. 1260, 76th Leg., R.S.
(1999) ..................................................................................................................22
xi
STATEMENT OF THE CASE
Nature of the Action under 42 U.S.C. §1983 seeking a declaration invalidating

Case: Texas Health & Safety Code §166.046 under the due process
provisions of the United States and Texas Constitutions, as well
as temporary and permanent injunctive relief prohibiting Cook
Children’s Hospital from withdrawing medically inappropriate,
artificial life support that hospital physicians determined was
contrary to their professional ethical obligations.
Trial Court: Hon. Sandee Bryan Marion, sitting by assignment, 48th District
Court, Tarrant County.
Parties in the Plaintiffs: T.L., a minor, and her mother, on her behalf
Trial Court:
Defendant: Cook Children’s Medical Center
Trial Court Denied Plaintiffs’ request for temporary injunction to prevent

Disposition: Defendant from withdrawing artificial life-support from T.L.
x
ISSUES PRESENTED
1. The United States Supreme Court has held that the withdrawal of artificial life-
support from a patient does not, as a matter of law, cause the patient’s death; the
patient’s underlying fatal disease does. Does a physician’s compassionate,
conscience-based refusal to provide painful and inappropriate artificial life-support
nevertheless constitute a deprivation of the patient’s interest in life?
2. While a patient has a right to choose her own course of medical treatment, that
individual right does not include the power to force a physician to provide that
chosen course of treatment—especially when the requested treatment violates the
physician’s own ethical or moral beliefs. Does a physician’s compassionate,
conscience-based refusal to provide painful and inappropriate artificial life-support
requested by the patient or her surrogate violate the patient’s interest in medical
choice?
3. An unbroken line of Supreme Court cases holds that the acts of a private entity
cannot be attributed to the State simply because the State regulates the entity, gives
it public funding, provides it statutory safe harbor, or permits it to use a statutorily
created process. Is Cook Children’s—an undisputedly private hospital—
nevertheless a state actor based on these factors?
xi
STATEMENT REGARDING ORAL ARGUMENT
Cook Children’s does not believe oral argument is necessary. This case is
governed by precedent from the United States and Texas Supreme Courts. Oral
argument would only delay disposition of the appeal, and any unnecessary delay will
impose additional pain and suffering on T.L. However, if the Court sets the appeal
for argument, Cook Children’s wishes to participate.
xii
INTRODUCTION
This case cannot be understood without appreciating several truths that
Appellants and the State conspicuously avoid.
It is true that Appellants have a right to make personal medical decisions. But
that right does not include the power to force a physician to provide care she believes
she cannot ethically give. The common law regards the doctor-patient relationship
as wholly voluntary. This reflects the truth that physicians, no less than their patients,
possess liberty, consciences, and strongly held moral and ethical beliefs. Here,
experienced pediatric nurses and doctors—who have dedicated their lives to treating
the sickest children—are unable to reconcile with their ethical duties the
excruciating but pointless pain they must cause T.L. every single day. These doctors’
and nurses’ rights of conscience are central to this case. They should not be ignored.
It is also true that T.L. has a right to life. But the tragic reality is that only her
diseases, not Cook Children’s, threaten to deprive her of life. The United States
Supreme Court has held—and Texas law agrees—that when artificial life-support is
withdrawn, it is the patient’s underlying disease that causes death. The law does not
regard the compassionate withdrawal of painful, medically inappropriate artificial
life-support as a life-taking act.
This case is much more complicated than Appellants and the State suggest.
Chief Justice Marion correctly declined to grant relief.

STATEMENT OF FACTS
T.L. was born prematurely in early 2019 at Harris Methodist Hospital in Fort
Worth. 2RR17–18. She was transferred to Cook Children’s Medical Center the same
day. 2RR18. T.L. suffers from a host of medical problems, including a rare heart
defect called Ebstein’s anomaly, pulmonary atresia, chronic lung disease, and severe
chronic pulmonary hypertension. 2RR89, 102–08, 119. 1 Her condition is terminal.
2RR91.
The most significant problem facing T.L. is that her body cannot properly
move oxygen from her lungs into her bloodstream. 2RR108. She has undergone
several high-risk, complex surgeries, 2RR113–16, 130–32, which have been unable
to significantly improve her condition. 2RR140–41. No further surgical options
remain. 2RR142.
T.L. is in the Cardiac Intensive Care Unit at Cook Children’s (“CICU”). The
CICU is a highly specialized department. The field of cardiac intensive care is a
subspecialty of pediatric intensive care, born out of a realization that babies with rare
heart defects require very specialized care by physicians experienced in that type of
1
Appellants now suggest that T.L.’s diagnosis is somehow uncertain, see Appellants’ Br. 1 (“It is
believed that [T.L.] has congenital heart disease and chronic lung disease, which has been said to
have caused pulmonary hypertension.” (emphasis added)), but the record permits no doubt. At the
temporary-injunction hearing, Appellants themselves called T.L.’s Cook Children’s physician in
their case-in-chief, elicited testimony as to T.L’s diagnosis, did not question it, and introduced no
conflicting medical testimony.
2
disease. 2RR102. The CICU routinely deals in rare diseases of the heart and has
often treated children with combinations of heart disease, respiratory failure, and
pulmonary hypertension—the same combination T.L. suffers. 2RR101–02.
A. T.L.’s health is severely compromised.
Because she cannot properly oxygenate her blood, T.L. is kept on a ventilator,
has three tubes down her nose and multiple intravenous lines for the administration
of medication, and is permanently attached to four additional machines to monitor
her biological functions. 2RR120–21, 273–74. Her body is subject to a “cascade” of
inflammation, causing her blood vessels to leak. 2RR145. As a result, she is very
swollen. Id. Despite her small size, she carries more than two liters of excess fluid.2
Id.
T.L’s multiple diseases cause life-threatening problems. Almost every day,
and often multiples times a day, T.L. has a “dying event” that mandates aggressive
medical intervention. 2RR277. These dying events are typically brought on by
agitation and can be triggered by routine CICU care such as a daily chest x-ray or
respiratory treatment, or even routine baby care such as a diaper change. 2RR133,
138, 268, 275. Sometimes they occur for no apparent reason. 2RR269, 275.
2
The photos in the record do not represent what T.L. looks like today. 2RR270–72; PX1–5. They
were taken before July 2019, before her condition markedly deteriorated. Id. Today, her swelling
has significantly increased, and her skin has a bluish tinge. 2RR272–73.
3
When T.L. gets upset and cries, her breathing works against the ventilator,
which shuts off as a safety precaution. 2RR133–34. As a result, her oxygen levels
drop precipitously. Id. Medical staff must immediately intervene to manually inflate
her lungs. 2RR134–35. Manual inflation is very difficult because “extraordinary
pressures” must be generated “to get air in to try to reestablish normal saturation.”
2RR135.
To mitigate these dying events, her doctors must increase her level of sedation
and paralysis so that she cannot get upset or move. 2RR137. Over time, she has
developed a tolerance for these medications, so the amount must be continuously
increased to have the desired effect. 2RR137. The dying events have recently
decreased because of these medications but are still frequent. 2RR138.
The cost of T.L. having fewer dying events is that she must spend her days
sedated and paralyzed in order to remain still and calm. 2RR150, 151. She cannot
move. 2RR150–51, 275. She cannot cuddle. 2RR188. She is rarely, if ever, held.
2RR283–84. The physician who has been treating her since birth has never seen her
smile. 2RR91. She is not currently capable of any of the actions Appellants describe
(e.g., cuddling, enjoying television shows, reaching out her hands for nail painting).
See Appellants’ Br. 1.
4
B. T.L. has been afforded aggressive, state-of-the-art treatment at
Cook Children’s.
From birth, T.L.’s prognosis was poor and her long-term survival doubtful.
2RR90–91. Still, in her first few months of life, her doctors hoped that with the help
of “relatively aggressive therapies,” T.L. might recover enough to leave the hospital.
2RR91. Between February and June 2019, she had several surgeries that achieved
incremental gains in her condition. See 2RR91, 109-10, 115-18.
In July 2019, however, T.L.’s condition took a decidedly negative turn. T.L.
completely crashed and, in a last-ditch effort to keep her alive, her physicians placed
her on a heart-lung bypass machine. 2RR91, 126–30. Another surgery was
performed to attempt to improve pulmonary blood flow in the hope that T.L.’s
oxygen levels would improve, but the hoped-for recovery did not occur. 2RR140–
41.
C. After the July 2019 crisis, T.L.’s already-slim hopes for recovery
disappeared.
After the July 2019 surgery failed to improve T.L.’s condition, her CICU
doctors discussed her condition with a multidisciplinary team that included
neonatologists, cardio-thoracic surgeons, her pulmonologist, and nursing staff.
2RR141–42. Their conclusion was that “her current cardiac anatomy and physiology
[was] not survivable and that to perform any other procedures and to continue painful
therapies and support measures was not in [T.L.’s] best interest.” Id.
5
Unfortunately, T.L.’s surgical options have been exhausted, 2RR142, and her
condition will never improve. As one of her physicians explained at the temporary-
injunction hearing:
Q. You mentioned a word, “hope”. Is T.L.’s case hopeless?
A. Yes.
Q. But she is surviving on life-sustaining care?
A. She is alive. Her heart beats, yes.
Q. Does she know who you are?
A. No.
Q. Have you seen her smile?
A. No.
2RR91.
From early on, the CICU team had informed T.L.’s mother that T.L.’s
combination of disorders would be very difficult to overcome, and those discussions
intensified after T.L.’s crisis in July. After the final surgery failed to improve T.L.’s
condition, her treatment team began having even more significant conversations
with T.L.’s family “about the likelihood that she may not survive.” 2RR91.
Even after months of conversations with the CICU physicians, T.L’s mother
persisted in believing that there must be some drug or surgery that would fix T.L.
2RR159–61; DX16. She did not want to talk to the CICU physicians anymore and
began to avoid them. Id.
6
D. Continued treatment in the CICU causes T.L. to suffer.
A physician’s most sacred ethical oath, dating back to Hippocrates, is “first,
do no harm.” Every day that the CICU staff treat T.L., they violate this oath. T.L.
cannot recover from or survive her medical conditions, yet her doctors and nurses
must hurt her to provide the constant medical intervention that keeps her alive.
2RR149. Continuing the intervention in that circumstance is “not medically,
ethically, or morally appropriate.” Id.
As one of T.L.’s physicians explained, “even the most routine of ICU cares
come with a price and that price is pain and that price is—is suffering.” 2RR144.
For T.L., “[c]hanging a diaper causes pain. Suctioning her breathing tube causes
pain.” 2RR146. Repositioning her—something that must be done constantly to
prevent bedsores—causes pain. 2RR146.
Indeed, even just being on the ventilator causes pain. Because T.L.’s lungs are
unhealthy, having air forced into them hurts. 2RR144–45, 146–47. The pain caused
by this routine care triggers her dying events, which lead to even more suffering.
2RR148. Manual ventilation is still more painful because it is done in an emergency
situation and must be extremely forceful. 2RR147–48. Because these crashes are a
daily event, 2RR277, T.L. must endure manual ventilation on a daily basis. T.L. is
in an endless, vicious cycle of suffering. See 2RR147.
7
This suffering is made worse by T.L.’s normal brain function. 2RR150. She
is not brain dead or in a coma. 2RR92, 149. Though she is paralyzed and on pain
medication, she feels every painful intervention and suffers the fear and anxiety that
come along with it. 2RR150.
E. Performing painful intervention on T.L. with no clinical benefit

conflicts with the CICU staff’s ethics and conscience.
In the months since July, while discussions with the family continued, the
CICU physicians had to continue painful interventions on T.L. even though they
believed doing so was unethical and even “cruel.” 2RR151. Inflicting pain and
suffering on T.L. for no clinical benefit took a severe psychological toll on the CICU
staff, as one of her doctors explained:
[W]here a patient doesn’t have any hope of surviving . . . but yet you’re
still providing those very painful and uncomfortable conditions and the
patient is suffering, it creates a significant degree of moral distress.
2RR164.
By definition, the CICU deals almost exclusively with medically complex and
fragile children. 2RR263. The professionals who work in the CICU perform painful
treatments on children every day without shirking. 2RR281. They do so because they
know that causing pain can be necessary to help their child patients get better and
ultimately go home. Id.
But this calculus fails in T.L.s case. Id. The medical staff inflicts pain that—
it is undisputed—will not help her get better. Id. From this, these seasoned
8
professionals naturally recoil—and they ultimately seek to refuse to cause a child
needless pain despite instructions that they do so. See id.
This moral distress severely affects nurses in particular. 2RR280. Nurses
spend more time with patients than anyone else. 2RR265. In the Cook Children’s
CICU, the nurse-to-patient ratio is 1:1 or 1:2. 2RR264. The nurse remains in the
patient’s room or just outside, keeping a line of sight on the patient at all times.
2RR263–65. The nurse provides the patient’s daily care and carries out the
physicians’ orders. 2RR265. This includes anything from bathing and diaper
changes to administering medication and responding to emergencies. 2RR268–69.
T.L.’s case mandates special rules and procedures because even a simple
touch can trigger a dying event. 2RR275, 281. T.L. always has her own nurse.
2RR282. Nurses “cluster” her care around her respiratory treatments so that they
need touch her as infrequently as possible. 2RR268–69. This also ensures multiple
staff members are in the room in case T.L. crashes. 2RR276–78.
The nurses take extraordinary precautions to prevent T.L. from crashing.
There is a one-hour window in which doses of T.L.’s sedatives, paralytics, and pain
medications can be given. 2RR277–78. One nurse testified that she administers the
medications at the earliest possible time, as waiting even 15 minutes into the one-
hour window can precipitate a crash. 2RR278.
9
A nurse who has cared for T.L. since birth testified that it is “very emotionally
difficult for [her] and for the nursing staff . . . [b]ecause we’re inflicting painful
interventions on her that we believe exacerbate her suffering for no good outcome.”
2RR266, 280. Because of this moral distress, nurses are notified in advance that they
will be assigned to T.L. so that they may request a change in assignment. 2RR282.
Many nurses refuse to be assigned to T.L. because they “are uncomfortable in
inflicting that kind of pain on her.” 2RR282.
F. The CICU staff made comprehensive efforts to transfer T.L. to

another hospital that would carry out her mother’s wishes, but
every hospital refused.
After T.L.’s crisis in July, the CICU physicians began speaking with her
mother more urgently about T.L.’s dire condition and constant suffering. 2RR91.
The mother expressed interest in transferring her baby to another hospital. 2RR154.
At the mother’s request, the CICU doctors spoke with Boston Children’s Hospital
and Texas Children’s Hospital about transfer. 2RR154–55. Both hospitals refused.
2RR157.
The CICU physicians then asked the mother if she wanted them to contact
other hospitals to continue to seek a transfer. 2RR158. She declined because she
believed other hospitals would similarly refuse. 2RR158. Thus, transfer efforts
ceased for a time.
10
G. At an impasse, the CICU physicians requested a consult from the
Cook Children’s Ethics Committee.
After months of discussions with the mother, T.L.’s physicians determined
that they were at an impasse. A close family friend told them that the mother would
never be able to decide to stop treatment and suggested that the physicians turn to
the hospital’s Ethics Committee. 2RR162–63. On September 27, 2019, believing
that “without the hope of recovery or survival that this treatment was not beneficial
and was not ethically appropriate,” 2RR87, the CICU physicians requested an Ethics
Committee consult. 2RR27–28.
One of T.L.’s physicians contacted the Committee’s Chair. 2RR84–85. In 11
years at Cook Children’s, this was the first time that this physician had requested
involvement of the Ethics Committee for an impasse with a family about
continuation of artificial life-support. 2RR86–88, 101.
H. The Ethics Committee determined that Cook Children’s could not

ethically continue to participate in providing T.L. artificial life-
support.
The Ethics Committee at Cook Children’s is asked to consult in connection
with removing artificial life-support on average once a year. 2RR31. The committee
is not a tribunal and is not intended to be one. See 2RR46–48. It is composed of
physicians, nurses, administrators, social workers, and community members—
including parents of former Cook Children’s patients. 2RR64. It is largely a
11
consultative body and operates based on the “combined wisdom” of its members.
2RR47.
Assisting with intractable disputes about artificial life-support, or any plan of
care, is only one of the Ethics Committee’s functions. The Committee also provides
guidance to patients, families, and medical staff on a wide range of issues, such as
providing education, developing policies, or advising about ethically difficult
clinical situations. 2RR36, 61–62.
Even though the committee’s job in this circumstance is to determine what
intervention Cook Children’s is ethically bound to provide (or abstain from
providing), 2RR83, the committee includes three members who are unaffiliated with
Cook Children’s, including one physician, 2RR65, 71. The committee has disagreed
with Cook Children’s physicians in the past and is by no means a rubber stamp of
treating physicians’ opinions. 2RR76.
The committee met on October 30, 2019, to consider T.L.’s treatment. 2RR51,
69. The mother was notified about the meeting five days in advance. 2RR69. The
mother, her own parents, and one of the CICU physicians were invited to speak.
2RR43, 73. All four were then excused from the meeting before the committee began
its discussion. 2RR44-45. After considering all the information presented, all 22
committee members in attendance unanimously determined that continuing artificial
12
life-support was not medically or ethically appropriate and that Cook Children’s
personnel should no longer inflict such painful intervention on T.L. 2RR45–46, 74.
Immediately, the Chair verbally informed T.L.’s mother of the committee’s
decision and informed her that Cook Children’s could discontinue artificial life-
support ten days after providing her written notice of the committee’s decision.
2RR51, 74. Written notice was hand-delivered to her the next day, along with T.L.’s
medical records for the previous 30 days and an abstract of the records of her entire
hospital stay at Cook Children’s. 2RR51, 75–76; see also 3RRDX4. The physician
team was also informed of the committee’s decision. 2RR52–53.
The efforts to transfer T.L. to another facility resumed after the Ethics
Committee’s decision in October. 2RR54-55; DX6, 7. The CICU physicians
contacted all of the top cardiac children’s hospitals in the country, 2RR180, making
“extraordinary efforts” to attempt to locate a hospital willing to treat T.L. in
accordance with her mother’s wishes, 2RR93. Every hospital refused. 2RR95, 170-
71.3
I. T.L’s mother sued Cook Children’s.

T.L.’s mother filed suit under 42 U.S.C. §1983 and the Uniform Declaratory
Judgments Act, alleging violations of procedural and substantive due process under
3
At the time of the temporary-injunction hearing, Boston Children’s was again reviewing the
medical records. 2RR196–98. A few days later it refused the transfer. CR283.
13
the federal and Texas Constitutions. CR1. She obtained a temporary restraining
order delaying the cessation of artificial life-support, CR25, 28, and that order was
extended twice by agreement until a temporary-injunction hearing could be held,
CR113, 172. The judge who entered the initial temporary restraining order was
recused, CR128, and Chief Justice Hecht appointed the Honorable Sandee Bryan
Marion, Chief Justice of the Fourth Court of Appeals in San Antonio, to be the trial
judge, CR130.
After a full day of testimony, Chief Justice Marion took the matter under
advisement and found cause to allow T.L.’s mother until January 2, 2020, to
continue to seek a transfer to another hospital. 2RR349–50. On January 2, 2020,
Chief Justice Marion signed an order denying the request for temporary injunction.
CR307. This interlocutory appeal followed.
14
SUMMARY OF ARGUMENT
Appellants failed to prove two elements necessary to their request for a
temporary injunction: that they had (1) a cause of action against Cook Children’s
and (2) a probable right to the relief sought. Butnaru v. Ford Motor Co., 84 S.W.3d
198, 204 (Tex. 2002). Accordingly, Chief Justice Marion did not abuse her discretion
in denying Appellants’ request for temporary injunction. Because Appellants’
constitutional claims fail as a matter of law, Chief Justice Marion’s decision was not
“so arbitrary that it exceeded the bounds of reasonable discretion”—as this Court
must find to reverse her order. Communicon, Ltd. v. Guy Brown Fire & Safety, Inc.,
No. 02-17-00330-CV, 2018 WL 1414837, at *7 (Tex. App.—Fort Worth Mar. 22,
2018, no pet.) (mem. op.).
End-of-life decisions are wrenching for patients, their families, and medical
professionals. Often, an intervention that artificially prolongs life may also
prolong—or even intensify—suffering. A doctor, bound by an oath to do no harm,
may conclude that her ethics or conscience will not permit her to provide treatment
that causes suffering without a corresponding benefit. The patient’s surrogate may
disagree. The question becomes how to resolve this conflict among private parties.
At common law, either party could leave the wholly voluntary doctor-patient
relationship at will. Thus, if a patient sought treatment the physician believed
unethical or that violated her conscience, the physician had a right to abstain from
15
providing it; her only legal duty was to give the patient a reasonable opportunity to
transfer to another physician.
The Texas Advance Directives Act (the “Act”) codifies these common-law
principles. Additionally, it provides an optional dispute-resolution procedure for
these difficult circumstances, in which the hospital’s ethics committee makes the
decision for the entire institution. The family is given notice of the committee’s
meeting and the right to attend. If the committee decides that the hospital cannot
ethically provide the requested intervention, the hospital must assist the patient’s
attempt to transfer to a facility willing to carry out the family’s wishes. The Act
explicitly does not grant physicians or hospitals any power they did not have at
common law. Instead, it protects their preexisting rights of conscientious refusal by
ensuring that, if they use the voluntary procedure, they will not be subject to
malpractice liability or other discipline.
Here, T.L.’s mother and her physicians reached an impasse. The doctors and
nurses who must hurt this small child every day—towards no beneficial end—came
to believe that the only way they could act consistently with their oath, medical
ethics, and their consciences was to decline to participate any longer in treatment
they considered unethical. Indeed, some seasoned pediatric nurses refuse to be
assigned to care for T.L. because the intervention they are instructed to provide
causes them extreme moral distress. 2RR280–82.
16
After months of discussion, T.L.’s mother disagreed, and T.L.’s physicians
invoked the Act’s dispute-resolution procedure. The ethics committee agreed that
Cook Children’s could not ethically provide further painful, inappropriate artificial
life-support. Afterwards, Cook Children’s—going far beyond the Act’s
requirements—made a herculean effort to assist T.L.’s mother in searching for an
institution willing to comply with her wishes. All these efforts failed, and this lawsuit
followed.
Appellants and the Attorney General ask this Court to order Cook Children’s
to continue inflicting medically inappropriate suffering on T.L. contrary to medical
ethics and conscience. But their constitutional suit has no basis. For two critical
reasons, a private hospital’s use of the statutory dispute-resolution procedure cannot
violate a patient’s due-process rights.
First, use of the Act’s process deprives a patient of no constitutionally
protected interest. A patient’s right to choose her treatment does not include a right
to force a doctor to provide it—just as the constitutional right to an abortion does
not include the constitutional right to force a particular doctor to perform one.
Rather, it is a right to attempt to find a willing doctor. In refusing, a doctor exercises
her own liberty interest without violating the patient’s. Likewise, when artificial life-
support is withdrawn, the withdrawal is not the cause of the patient’s death; the
underlying disease is. Both Texas law and the United States Supreme Court have
17
recognized this critical distinction, which Appellants and the State ask this Court to
ignore.
Second, the due process clause protects only against constitutional
deprivations by the government, and Cook Children’s is not the government. A long
line of United States Supreme Court decisions confirms that Cook Children’s does
not become the government as a consequence of state regulation, public funding,
statutory safe harbor, or the use of a State-created statutory process.
Appellants’ misguided constitutional claims ask the State to become far more
involved in private disputes, eliminating—as a matter of constitutional law—
physicians’ and nurses’ rights of conscience. And they ask this Court to overturn a
careful legislative compromise between medical providers, right-to-life
organizations, and religious authorities.
The policy questions this case raises belong in the Legislature, not this Court.
18
ARGUMENT4
The following facts are undisputed:
• T.L.’s condition is terminal, and there is no chance of recovery.
• T.L. suffers constant pain, which is aggravated by the artificial life-support

Cook Children’s is forced to provide her;
• T.L.’s medical team unanimously agree that continuing to provide her

these medically inappropriate, painful support is unethical.
• Every hospital that has reviewed T.L.’s case over a period of several
months is unwilling to accept transfer and comply with her mother’s
preferred course of treatment.
• Cook Children’s is a private hospital.

From these facts, Appellants attempt to state a constitutional claim against
Cook Children’s. To do so, they must make numerous false—but attention-
grabbing—claims about the powers §166.046 supposedly grants Cook Children’s.
These claims are belied by §166.046’s text, which Appellants never closely
analyze, by the common law governing the physician-patient relationship; and by
binding decisions from the United States Supreme Court. Section 166.046 grants
none of the radical powers Appellants attribute to it. Rather, it provides a means of
4
In the trial court, Appellants argued that an injunction was authorized by §166.046(g) of the Act,
which permits a court to require a healthcare provider to maintain the status quo if it finds “that
there is a reasonable expectation that a physician or health care facility that will honor the patient’s
directive will be found if the time extension is granted.” TEX. HEALTH & SAFETY CODE
§166.046(g). The trial court granted this relief through January 2, 2020. Appellants do not seek
any further relief under this provision.
19
resolving purely private disputes between doctors and their patients. Properly
understood, there is no constitutional infirmity.
Below, Cook Children’s first lays out the historical common-law conception
of the doctor-patient relationship and the concerns that animated §166.046’s
passage. Next, Cook Children’s explains the narrow, purely private effect of
§166.046. And finally, Cook Children’s explains why, once §166.046’s meaning is
understood, Appellants’ constitutional attack must be rejected.
I. The doctor-patient relationship is a voluntary arrangement between two

parties each, guided by her own judgment, conscience, and ethics.
A. Physicians have a common-law right to refuse to provide care
inconsistent with their conscience or ethics.
“The physician-patient relationship is ‘wholly voluntary.’” Gross v. Burt, 149
S.W.3d 213, 224 (Tex. App.—Fort Worth 2004, pet. denied) (quoting Fought v.
Solce, 821 S.W.2d 218, 220 (Tex. App.—Houston [1st Dist.] 1991, writ denied)). At
its simplest, this means that a patient has no obligation to accept care from a
physician that she does not wish to receive, while a physician has no obligation to
provide care she does not wish to give.
Appellants focus heavily on the first part of this equation, observing correctly
that a patient has a constitutional right to make decisions about her own treatment.
Appellants’ Br. 22 (citing Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261,
269 (1990)). Unfortunately, Appellants ignore the other side of the equation, merely
20
assuming—without ever demonstrating by law or logic—that once a patient makes
a decision, her physician must, as a matter of constitutional law, carry out her
instructions.
The common law has long rejected this notion. While a physician may not
force treatment upon a patient, a physician has always been allowed to refuse to
provide treatment that offends the physician’s sense of conscience, ethics, or
professional judgment. This right is intrinsic to the doctor-patient relationship’s
private, voluntary nature. Indeed, it is intrinsic to the physician’s own liberty—“[n]o
person can be caused, against his will, to enter into an employment contract.”
N.L.R.B. v. Knoxville Pub. Co., 124 F.2d 875, 882 (6th Cir. 1942); accord Texas
Alcoholic Bev. Comm’n v. Live Oak Brewing Co., 537 S.W.3d 647, 655 (Tex.
App.—Austin 2017, pet. denied) (“Among the liberty interests protected by due
course of law is freedom of contract . . . .”).
To protect the individual rights of each party to the bilateral, physician-patient
relationship, either party may terminate it at will. AM. MED. ASS’N, COUNCIL ON
ETHICAL & JUDICIAL AFFAIRS, CODE OF MED. ETHICS §1.1.5 (2016). Thus, while a
physician cannot countermand a patient’s wish, the physician can abstain from
providing a particular treatment. The Code of Medical Ethics protects physicians’
“right to act (or refrain from acting) in accordance with the dictates of conscience
21
in their professional practice,” allowing them “considerable latitude to practice in
accord with well-considered, deeply held beliefs.” Id. §1.1.7 (emphasis added).
If a physician wishes to cease treating a patient according to the patient’s
wishes, ethical rules merely require a physician to “[n]otify the patient (or authorized
decision maker) long enough in advance to permit the patient to secure another
physician,” to whom the abstaining physician must “[f]acilitate transfer.” Id. §1.1.5.
Where a physician complies with these narrow duties, the common law has
traditionally protected her from liability to the patient. E.g., King v. Fisher, 918
S.W.2d 108, 112 (Tex. App.—Fort Worth 1996, writ denied) (describing the
elements of a common-law abandonment claim); see also Tate v. D.C.F. Facility,
No. 4:07CV162-MPM-JAD, 2009 WL 483116, at *1 (N.D. Miss. Jan. 23, 2009)
(“Doctors and hospitals of course have the right to refuse treatment . . . .”).
In short, “[r]especting patient autonomy does not mean that” physicians must
provide “specific interventions simply because they (or their surrogates) request
them.” CODE OF MED. ETHICS §5.5.
B. Section 166.046 was enacted to help resolve private disagreements

between patients and physicians regarding care.
Disagreements between patients (or their surrogates) and physicians are most
fraught when they concern end-of-life decision-making. The Texas Advanced
Directives Act was passed, in part, to address these problems.
22
In 1999, the Legislature passed the Act, which was intended to “set[] forth
uniform provisions governing the execution of an advance directive” regarding
healthcare. Sen. Research Ctr., Bill Analysis, Tex. S.B. 1260, 76th Leg., R.S. (1999).
The Act was the culmination of a six-year effort among a diverse array of
stakeholders, including Texas and National Right to Life, Texas Alliance for Life,
the Texas Conference of Catholic Health Care Facilities, the Texas Medical
Association, the Texas Hospital Association, and the Texas and New Mexico
Hospice Organization. See Hearing on H.B. 3527, Comm. on Pub. Health, 76th Leg.,
R.S. (Apr. 29, 1999) (statement of Greg Hooser, Texas and New Mexico Hospice
Organization).
Ironically, Texas Right to Life was a champion of the Act it is now attempting
to overturn. Its Legislative Director testified: “[W]e like it and the whole coalition
seems to be in agreement with this. . . . [W]e are really united behind this language.”
See id. (statement of Joseph A. Kral, IV, Legislative Director, Texas Right to Life).5
The bill passed the Senate unanimously and it passed the House on a voice vote. Act
of May 11, 1999, 76th Leg., R.S., ch. 450, §3.05, 1999 Tex. Gen. Laws 2835, 2865.
5
No one registered as opposed to the bill. See Hearing on H.B. 3527, Comm. on Pub. Health, 76th
Leg., R.S. (Apr. 29, 1999) (statement of Greg Hooser, Texas and New Mexico Hospice
Organization) (“Mr. Hildebrand, no sir, there is no opposition.”); see also id. (witness list).
23
One issue animating the Act’s passage was what is commonly referred to as
“medical futility.” Simplified, this issue arises when a patient’s underlying condition
is fatal and incurable, but artificial intervention can allow the patient to continue
living. However, that intervention often causes the patient substantial pain. Many
physicians believe that “[i]t is inhumane to prolong a dying process that causes pain
to a patient,” and they “believe they should not be forced to provide treatment” of
this type when it “violates their ethics.” CYNTHIA S. MARIETTA, THE DEBATE OVER
THE FATE OF THE TEXAS “FUTILE CARE” LAW: IT IS TIME FOR COMPROMISE 3 (April
2007). 6
In testimony before the Legislature, Dr. Ann Miller, a pediatric chaplain,
explained the physician’s ethical imperative:
In a hospital, you see we frequently must ask patients for permission to

hurt them, to give them medicine, our children, that make them sick, to,
it makes their hair fall out, burns their skin or makes huge bruises,
treatment that is painful, frightening, embarrassing and undignified. . . .
What makes the pain and indignity acceptable is our noble purpose. We
have medical evidence that the benefits to the patient’s health have a
good chance of far outweighing the risk and the pain that we’re going
to inflict, and this noble purpose of affecting a patient’s health is the
only way we can justify our actions to patients and families, and the
only way we can look ourselves in the mirror.
6
Available at https://www.law.uh.edu/healthlaw/perspectives/2007/(CM)TXFutileCare.pdf.
24
Hearing on C.S.S.B. 439 before the Senate Comm. on Health & Human Servs., 80th
Leg., R.S. (April 12, 2007) (statement of Dr. Ann Miller, Director of Pastoral Care,
Cook Children’s Medical Center).
Prior to the Act, physicians were often faced with a Hobson’s choice between
their consciences and professional ethics, on the one hand, and their livelihood on
the other. Consider a physician who determines that further treatment is not only
medically futile, but severely painful to the patient such that it violates the
physician’s ethical responsibility to do no harm. Yet the patient’s surrogate insists
that this treatment should continue.
Under the common law that governed the voluntary doctor-patient
relationship, the physician would most likely be free from liability if she refused to
provide further care, so long as she gave the surrogate an opportunity to find a
physician who would. But there was no guarantee: the patient could file a medical-
malpractice claim, or a regulatory body could investigate, and liability or discipline
would depend on a complex judgment about whether the physician had appropriately
followed the standard of care. As a result, physicians—fearing malpractice liability
or professional discipline—often felt forced to provide care they believed to be
25
unethical. Robert L. Fine, M.D., Medical futility and the Texas Advance Directives
Act of 1999, 13 B.U.M.C. PROCEEDINGS 144, 145 (2000). 7
The Act was intended to address this problem. And, as Cook Children’s
explains in the next section, it did so through a process-based approach, without any
need to define medical futility or dictate that physicians take any particular course
in any situation. 8
II. Appellants’ constitutional claims are premised on a misreading of

§166.046.
Appellants assert that §166.046 of the Act grants physicians “statutory
authority” to “make a decision for” a patient. Appellants’ Br. 25, 30. More
hyperbolically, Appellants assert that it permits a physician to “sentence ill people
to premature death.” Id. at 21. These inflammatory assertions are flatly incorrect,
and Appellants can make them only because they refuse to deal honestly with the
Act’s text and the common law it codifies.
7
Available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1312296/pdf/bumc0013-0144.pdf.
8
The Act’s process-based approach resembled one recommended years earlier by the American
Medical Association. Without statutory enactment, the specter of malpractice liability had limited
its usefulness. See Robert L. Fine, M.D., Medical futility and the Texas Advance Directives Act of
1999, 13 B.U.M.C. PROCEEDINGS 144, 145 (2000).
26
A. Section 166.046 is a voluntary safe-harbor provision that does not
grant physicians any rights they did not have prior to the statute’s
enactment.
As a whole, the Act creates a legal framework for how healthcare providers
should handle and comply with advance directives, out-of-hospital do-not-
resuscitate orders, and medical powers-of-attorney in the context of life-sustaining
intervention. See TEX. HEALTH & SAFETY CODE §§166.001–.166. It does so within
the common-law framework governing the voluntary physician-patient relationship.
Thus, the Act does not “impair or supersede any legal right or responsibility a person
may have to effect the withholding or withdrawal of life-sustaining treatment in a
lawful manner.” Id. §166.051 (emphasis added).
Generally, the Act requires physicians to follow treatment decisions made by
or on behalf of a patient. At the same time, the Act—like the common law—
acknowledges that a patient’s wishes may conflict with a physician’s conscience or
judgment. Section 166.046—which Appellants contend is unconstitutional—is a
tool for resolving these conflicts. It does not grant any new powers to physicians or
hospitals. Instead, it provides a voluntary process by which a physician can seek to
harmonize her ethical duties with the patient’s wishes. It can be utilized regardless
of whether the doctor wishes to withhold or provide life-sustaining intervention over
a patient’s wishes. Id. §166.046.
27
The first critical point to understand about §166.046 is that utilization of its
process is not mandatory, even when a physician wishes to abstain from providing
artificial life-support:
If an attending physician refuses to comply with a directive or treatment

decision and does not wish to follow the procedure established under
Section 166.046, life-sustaining treatment shall be provided to the
patient, but only until a reasonable opportunity has been afforded for
the transfer of the patient to another physician or health care facility
willing to comply with the directive or treatment decision.
Id. §166.045(c) (emphasis added). This provision is declarative of the common law.
It permits a physician to rely on her common-law right to refuse to provide medical
care that is inconsistent with her ethics. As she would have been before the Act, a
physician who refuses to provide artificial life-support without following §166.046’s
procedure is civilly liable only if she “fails to exercise reasonable care.” Id.
§§166.044(a), (d).
In addition to codifying the common-law rule, the Act adds a safe harbor for
a physician that complies with §166.046 before refusing to carry out a patient’s
treatment decision:
A physician, health professional acting under the direction of a

physician, or health care facility is not civilly or criminally liable or
subject to review or disciplinary action by the person’s appropriate
licensing board if the person has complied with the procedures outlined
in Section 166.046.
Id. §166.045(d) (emphasis added). Under that process, if a physician is unwilling to
honor a patient’s (or surrogate’s) directive, that “refusal shall be reviewed by an
28
ethics or medical committee,” of which the treating physician may not be a member.
Id. §166.046(a). The patient is entitled to notice of the committee’s meeting, an
opportunity to attend, and notice of the committee’s decision. Id. §166.046(b).
Regardless of the committee’s decision, if either the patient or the physician
disagrees with it, the physician must “make a reasonable effort to transfer the patient
to a physician who is willing to comply.” Id. §166.046(d). If the committee affirms
a physician’s decision that further life-sustaining treatment is medically
inappropriate, “life-sustaining care” (including artificial life-support) must
nevertheless be provided for at least ten days while transfer to a facility willing to
comply with the patient’s decision is attempted. Id. §166.046(e).
Both before and after the Act’s passage, physicians were entitled to act
according to their conscience, including when that meant refusing to provide
artificial life-support that a patient or her surrogate requested. The Act codifies but
does not enlarge this right. It provides safe harbor when a physician chooses to utilize
a procedure that the Legislature intended to help resolve private conflicts between
physicians, patients, and families regarding end-of-life care.
The Act’s plain text, and the common law it codified, repudiate Appellants’
assertion that, through the Act, the Texas Legislature has authorized a health-care
provider to take a patient’s life. If that were the case, the religious and right-to-life
29
organizations that drafted the Act and worked for its passage would have spared no
effort to defeat it.
B. A means of challenging §166.046’s constitutionality is available, but

Appellants consciously chose not to pursue it.
Section 166.046 does not impose any duties on Cook Children’s. The hospital
and its doctors are free to forego §166.046’s procedure even if they intend to cease
providing medically inappropriate artificial life-support. Section 166.046 does not
deprive Appellants of any right: if §166.046 had never been enacted, T.L. would still
have no constitutional right to force a physician to provide her care the physician did
not wish to provide. Neither does §166.046 grant Cook Children’s any rights it did
not already have: a doctor has always been permitted to exit the doctor-patient
relationship at will. Rather, §166.046’s only effect on the parties to this case is that
it bars Appellants from suing Cook Children’s for malpractice.
It is because of this narrow effect that, in seeking to prevail on their §1983
claims, Appellants require this Court to legislate from the bench—to become the
first court in the United States to hold:
• that the State has an affirmative obligation to provide its citizens with the
medical care of their choice, infra §III.A.; and
• that, as a consequence of State regulation, the State becomes a party to the

doctor-patient relationship, such that the physician’s termination of that
relationship can be imputed to the State, infra §III.B.
30
Such a holding would radically expand the role of the State in Texans’ lives. If this
is what Appellants want, their remedy is the Legislature—not a §1983 claim.
To challenge §166.046, Appellants and the State did not have to invite this
Court to engage in revolutionary judicial activism. A safe-harbor statute like
§166.046 prevents a plaintiff from bringing a cause of action that the law would
otherwise allow. See, e.g., Newman v. Obersteller, 960 S.W.2d 621, 622 (Tex. 1997).
When the Legislature abrogates a common-law cause of action, it must do so
consistent with Texas’s open courts provision, which provides that “[a]ll courts shall
be open, and every person for an injury done him, in his lands, goods, person or
reputation, shall have remedy by due course of law.” TEX. CONST. art. I, §13. This
provision ensures that a person bringing a well-established common-law cause of
action will not suffer an unreasonable or arbitrary denial of access to the courts.
Yancy v. United Surgical Partners Int’l, Inc., 236 S.W.3d 778, 783 (Tex. 2007)
(citing Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex.1996)).
Because §166.046’s only legal effect is to abrogate a malpractice claim, the
correct way to challenge its constitutionality would be for Appellants to bring a
malpractice claim against Cook Children’s and argue that the Act’s safe-harbor
provision violates the open-courts clause. To prevail on such an argument,
Appellants would need to prove “(1) a cognizable, common-law claim that is
statutorily restricted, and (2) the restriction is unreasonable or arbitrary when
31
balanced against the statute’s purpose and basis.” Id. Thus, the court would grapple
with whether §166.046 is unreasonable or arbitrary, a matter within the judicial
branch’s competence and proper constitutional role. See Methodist Healthcare Sys.
of San Antonio, Ltd. v. Rankin, 307 S.W.3d 283 (Tex. 2010) (considering whether
statute of repose violated open-courts guarantee as applied to medical-malpractice
action); Lund v. Giauque, 416 S.W.3d 122, 132–33 (Tex. App.—Fort Worth 2013,
no pet.) (considering whether statutory grant of immunity violated open-courts
guarantee in tort action).
Appellants consciously elected not to pursue a challenge of this type, telling
the trial court, “[t]his is not a malpractice suit.” 2RR298. To be clear, Cook
Children’s believes §166.046 would survive an open-courts challenge, just as it
survives Appellants’ misdirected due-process challenge. But by asserting the correct
constitutional argument via the proper cause of action, Appellants would permit the
parties and courts to have an honest discussion about whether the Legislature’s
policy choice was arbitrary. Appellants chose not to invoke that mechanism, and
they are bound by the consequences of their decision.
Through Appellants’ §1983 claim, they and the State threaten to lead this
Court down a dangerous path towards statism and judicial activism. For the reasons
Cook Children’s explains in the next section, this Court should reject that effort.
32
III. Section 166.046’s procedure is constitutional.
Appellants assert that §166.046 offends procedural and substantive due
process. To prevail on a procedural-due-process claim, a plaintiff must prove that
(1) she had a protected liberty or property interest and (2) that she was deprived of
that interest with insufficient process. Logan v. Zimmerman Brush Co., 455 U.S.
422, 428 (1982); University of Tex. Med. Sch. at Hous. v. Than, 901 S.W.2d 926,
929 (Tex. 1995).9 The substantive due-process inquiry looks at whether the state has
arbitrarily deprived the plaintiff of a constitutionally protected interest. Patel v.
Texas Dep’t of Licensing & Regulation, 469 S.W.3d 69, 86–87 (Tex. 2015); Simi
Inv. Co. v. Harris Cty., Tex., 236 F.3d 240, 249 (5th Cir. 2000). And under either
claim, a plaintiff must demonstrate that the deprivation was the result of state action.
Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982); 42 U.S.C. §1983.
Therefore, to prevail on their claims, Appellants must show both that they
have a constitutionally protected interest and that they will be deprived of this
interest as a result of state action. Appellants cannot demonstrate either.
9
The federal Due Process Clause, U.S. CONST. amend. XIV, §1, and Texas’s Due Course of Law
Clause, TEX. CONST. art. I, §19, are functionally similar, and the Texas Supreme Court routinely
relies on federal precedent in interpreting the state clause. University of Tex. Med. Sch. at Hous. v.
Than, 901 S.W.2d 926, 929 (Tex. 1995). This is especially true of “state action issues,” with
respect to which the Court has explained that “[f]ederal court decisions provide a wealth of
guidance.” Republican Party of Tex. v. Dietz, 940 S.W.2d 86, 91 (Tex. 1997).
33
A. Section 166.046 does not deprive Appellants of any constitutionally
protected interest.
Appellants identify three interests that they assert §166.046 will deprive them
of: T.L.’s interest in life; her mother’s right to make medical decisions for T.L.; and
Appellants’ parent-child relationship. Because each of these arguments is premised
on a misunderstanding of how §166.046 operates, each fails.
1. Utilization of the §166.046 procedure does not deprive a

patient of life.
According to Appellants, §166.046 “delegate[s] life[-]taking authority to a
hospital’s ethics committee.” Appellants’ Br. 21. Behind this assertion is a belief
that when a physician refuses to provide artificial life-support, the physician causes
the patient’s death—no different than if the physician had administered a life-taking
drug. See id. at 21; see also State’s Br. 10 (asserting that “[t]he denial of life-saving
medical treatment is the denial of a constitutionally protected interest”).
In Vacco v. Quill—a decision on which Cook Children’s has consistently
relied but Appellants and the State tellingly fail to mention—the United States
Supreme Court rejected this argument. 521 U.S. 793, 801 (1997). There is, in fact, a
critical distinction between a physician’s active participation in an act that causes a
patient death and a physician’s abstention from providing artificial life-support.
A patient has a constitutional right to refuse life-sustaining medical care.
Cruzan, 497 U.S. at 278. Yet in most states, including Texas, physician-assisted
34
suicide is a crime. TEX. PENAL CODE §22.08(a). In Vacco, the respondents attacked
this distinction, arguing that because the patient’s “refusal of [life-sustaining]
treatment is ‘essentially the same thing’ as physician-assisted suicide,” there was a
constitutional right to the latter. 521 U.S. at 798.
In rejecting the respondents’ arguments, the Supreme Court also rejected the
conflation on which Appellants’ due-process claims are premised. The Court held
that “the distinction between assisting suicide and withdrawing life-sustaining
treatment, a distinction widely recognized and endorsed in the medical profession
and in our legal traditions, is both important and logical.” Id. at 800–01 (footnote
omitted). Indeed, it “comports with fundamental legal principles of causation and
intent”:
[W]hen a patient refuses life-sustaining medical treatment, he dies from

an underlying fatal disease or pathology; but if a patient ingests lethal
medication prescribed by a physician, he is killed by that medication.
Id. (emphasis added); see also id. at 801 (recognizing that the intent of a physician
who withdraws life sustaining care is not to kill, but to “cease doing useless and
futile or degrading things to the patient when the patient no longer stands to benefit
from them” (internal quotation marks and brackets omitted)).
The Legislature, unlike Appellants and the State, understood the Supreme
Court’s distinction. Compare TEX. PENAL CODE §22.08(a) (making physician-
assisted suicide a crime), with TEX. HEALTH & SAFETY CODE §§166.044(a)–(c)
35
(permitting physicians to withdraw “life-sustaining care” in accordance with a
patient’s directive); accord TEX. HEALTH & SAFETY CODE §166.050 (providing that
the withdrawal of “life-sustaining care” under the Act in order to “permit the natural
process of dying” is not an “affirmative or deliberate act or omission to end life” of
the type Texas law forbids).
Vacco’s reasoning, which the Act explicitly incorporates, forcefully negates
Appellants’ constitutional challenge. If a physician withdraws artificial life-support
(whether pursuant to §166.046 or not), the physician’s actions do not cause the
patient’s death. The patient’s underlying disease does. Accord Am. Med. Ass’n,
Council on Ethical and Judicial Affairs, Physician-Assisted Suicide, 10 ISSUES IN
LAW & MEDICINE 91, 93 (1994) (“When a life-sustaining treatment is declined, the
patient dies primarily because of an underlying disease.”). Thus, courts have held
that even where the person choosing to withdraw care is a state actor, that choice
does not violate due process because there is a “fundamental” and legally crucial
“difference between depriving someone of life and letting disease run its course.” In
re Tschumy, 853 N.W.2d 728, 747 (Minn. 2014);10 In re Quinlan, 355 A.2d 647,
669–70 (N.J. 1976) (holding that where artificial life-support is withdrawn, “the
10
Tschumy concerned a ward of the State of Minnesota who had irreversible brain damage. In re
Tschumy, 853 N.W.2d 728, 732 (Minn. 2014). The question was whether the ward’s due process
rights would be violated if his guardian consented to the withdrawal of his life-sustaining medical
care. See id. at 747. The Court assumed that the guardian was a state actor but held that there was
no due-process violation because the withdrawal permitted a natural death; it did not cause it. Id.
36
ensuing death would not be homicide but rather expiration from existing natural
causes”); see also TEX. HEALTH & SAFETY CODE §166.050.
Cook Children’s does not deny that T.L. has a constitutionally protected life
interest. But in refusing to continue providing medically inappropriate, artificial life-
support that hurts T.L. without helping her, Cook Children’s is not depriving her of
life. Her disease will take her life, but there is no constitutional claim for that tragic,
if natural, process. Vacco, 521 U.S. at 801.
2. Utilization of the §166.046 procedure does not deprive

Appellants of their right to make medical decisions.
The doctor-patient relationship is a voluntary two-way street. A patient has
the right to choose her course of treatment, and she effectuates this right by finding
a physician willing to follow her preferred course. The physician cannot provide
treatment contrary to the patient’s wishes, but neither may she be commandeered
into providing treatment that violates her own conscience and ethics. 11
If the physician and patient disagree about treatment, they dissolve their
relationship; the physician’s only obligation in that event is to facilitate the patient’s
transfer to a willing provider. Thus, a physician’s refusal to provide a particular
course of treatment does not deny the patient her right to make medical decisions; it
11
Cf. Brophy v. New England Sinai Hosp., Inc., 497 N.E.2d 626, 639 (Mass. 1986) (holding that
patient’s right to refuse artificial life-support did not “justify compelling medical professionals” to
participate in a decision “which [was] contrary to their view of their ethical duty”).
37
merely requires the patient to find a different physician to treat her according to her
wishes.
The due process clause confirms this analysis, even if Cook Children’s is
incorrectly treated as a state actor. Except in one narrow circumstance not applicable
here,12 a state-actor physician is not constitutionally obligated to prove any
treatment, including life-sustaining treatment. Indeed, if Appellants were correct that
the Constitution requires doctors to undertake treatment that prevents or forestalls
illness, then patients would have a constitutional right to have any and all ailments
treated by the State.
The United States Supreme Court has expressly rejected this position, which
undergirds Appellants’ suit. In DeShaney—another decision that Cook Children’s
relies on but Appellants and the State conspicuously ignore—the Supreme Court
held that the Constitution “generally confer[s] no affirmative right to governmental
aid, even where such aid may be necessary to secure life, liberty, or property interests
of which the government itself may not deprive the individual.” DeShaney v.
Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989).
DeShaney accords with and cannot be separated from the distinction Vacco
drew between death that results from natural processes following the withdrawal of
12
See infra p. 41 (discussing the unique affirmative obligations the State owes to persons whom it
has deprived of freedom, such as prisoners and the involuntarily committed).
38
artificial life-support and death that results from a person’s affirmative, life-taking
action: the government cannot take a person’s life, but it has no affirmative
obligation to provide artificial life-support. Id.; accord Vacco, 521 U.S. at 801.13
Appellants argue that in refusing to provide them with their desired course of
treatment, Cook Children’s denies Appellants the right to make their own medical
decisions. Thus, Appellants believe that the substance of the right to make a medical
choice includes the right to have the State comply with and carry out that choice.
Cook Children’s cannot find—and Appellants and the State have failed to cite—any
decision from any American jurisdiction recognizing such an expansive substantive
due-process right. See Abigail All. for Better Access to Developmental Drugs v. von
Eschenbach, 495 F.3d 695, 710 n.18 (D.C. Cir. 2007) (en banc) (“No circuit court
has acceded to an affirmative access [to medical care] claim.”); 14 Johnson ex rel.
Johnson v. Thompson, 971 F.2d 1487, 1495–96 (10th Cir. 1992) (rejecting argument
that right to life includes right to receive medical care). This Court should not
become the first.
13
The State’s decision to ignore DeShaney is telling. Elsewhere, it has recognized that under
DeShaney, “there is no freestanding constitutional obligation for the government to provide
services to its citizens under any circumstances.” Brief of the State of Texas, Planned Parenthood
of Austin Family Planning, Inc. v. Suehs, No. 12-50377, 2012 WL 1878694, at *22–23 (5th Cir.
filed May 11, 2012) (emphasis added).
14
In Abigail Alliance, the en banc D.C. Circuit held that the Due Process Clause does not give
terminally ill patients a right of access to potentially life-saving experimental drugs that have not
been approved by the FDA. Abigail All. For Better Access to Developmental Drugs v. von
Eschenbach, 495 F.3d 695, 711 (D.C. Cir. 2007) (en banc).
39
Were this Court to do so, the consequences would be severe and far-reaching.
Not only the refusal to provide artificial life-support, but the refusal to treat any
illness is capable of causing injuries of constitutional dimensions. Thus, in ruling for
Appellants, this Court would be creating a substantive-due-process entitlement to
any desired medical care, at least where its non-provision might cause cognizable
harm. A person with active alcoholism could demand a liver transplant; a patient
could demand opioids for mere headaches; or a patient could demand illegal or
unproven drugs or surgeries—and in each instance, the State would be
constitutionally obligated to provide the requested treatment. Contra Abigail All.,
495 F.3d at 710 n.18; People v. Privitera, 591 P.2d 919, 925–26 (Cal. 1979)
(rejecting substantive-due-process right of access to drug of patient’s choice).
But that is only the beginning. The due process clause has long been
understood to “afford[] protection against unwarranted government interference
with freedom of choice in the context of certain personal decisions,” but not to confer
an obligation on the government to ensure that the person “realize[s] all the
advantages of that freedom.” Harris v. McRae, 448 U.S. 297, 317–18 (1980).
Accordingly, the substantive-due-process right to use contraceptives does not imply
“an affirmative constitutional obligation to ensure that all persons have the financial
resources to obtain contraceptives.” Id. at 318.
40
To rule for Appellants would be to overrule not only DeShaney, but Harris as
well. It would be to command that where a person has a substantive-due-process
right—be it to life, travel, or an abortion—the government is not only prohibited
from interfering with the exercise of that right, it must affirmatively assist citizens
in “realiz[ing] all the advantages of” it. Id.
Putting aside the question of state action,15 a claim similar to Appellants’ was
addressed in Disability Rights Wisconsin v. University of Wisconsin Hospital &
Clinics, 859 N.W.2d 628 (Wisc. App. 2014) (unpublished). Like Appellants, the
Disability Rights plaintiffs argued that a state hospital violated their due process
rights by refusing to provide them certain desired treatments. The court rejected that
claim, finding no authority “that doctors have an obligation, deriving from patients’
fundamental constitutional rights, to begin or continue medical treatment.” Id. at *6.
Following DeShaney, the court concluded that there was no “substantive due process
right to medical care from the government” because such a right would “run contrary
to the fundamental principle that the government is not under a constitutional duty
to affirmatively protect persons or to rescue them from perils ‘that the government
did not create.’” Id. at *8 (quoting DeShaney, 489 U.S. at 195).
15
Unlike this case, Disability Rights concerned a public hospital that was unquestionably a state
actor.
41
The single exception to DeShaney’s rule is a telling one. The only persons
whom the state owes a constitutional duty to provide medical care are those the state
has deprived of their freedom—typically, prisoners and the involuntarily committed.
DeShaney, 489 U.S. at 198–99 (citing Youngberg v. Romeo, 457 U.S. 307, 314–15
(1982) (involuntary commitment); Estelle v. Gamble, 429 U.S. 97, 103–04 (1976)
(prisoners)). 16 But even in this unique context, the right to state-provided care is
narrowly circumscribed. Courts have roundly rejected the notion that prisoners and
the involuntarily committed have a right to receive “any particular type of
treatment.” Long v. Nix, 86 F.3d 761, 765 (8th Cir. 1996); accord Jenkins v.
Colorado Mental Health Inst. at Pueblo, 215 F.3d 1337, at *1–2 (10th Cir. 2000)
(unpublished).
DeShaney decides this case. Even if Cook Children’s were a state actor, the
Constitution would not require it to provide T.L. care it does not wish to provide—
care it believes is contrary to its professional and ethical duties. 17 Because Cook
16
This narrow exception to DeShaney’s rule explains the court’s holding in Baby F., on which
Appellants rely. That case concerned the proper standard for the withdrawal by the state of life-
sustaining care for a child in the state’s custody, when that decision was contrary to the wishes of
the child’s decision-making surrogate. See Baby F. v. Oklahoma Cnty. Dist. Ct., 348 P.3d 1080,
1082–84 (Okla. 2015). Notably, even in this state-custody situation, the court did not hold that the
State had an insuperable obligation to comply with the surrogate’s wishes, let alone that a specific
private physician or hospital did. Instead, the court held that life-sustaining care could be removed
if clear and convincing evidence demonstrated that it was in the child’s best interests. Id. at 1088;
see also In re Wendland, 28 P.3d 151, 169 (Cal. 2001).
17
Plaintiffs’ citation, at the injunction hearing, of the Emergency Medical Treatment and Labor
Act, 42 U.S.C. §1395dd, harms rather than helps their constitutional arguments. See 2RR348–49.
Plaintiffs are correct that, under certain circumstances, EMTALA requires emergency rooms to
42
Children’s has no affirmative obligation to provide medical care, §166.046 cannot
violate due process in granting Cook Children’s safe harbor for abstaining from such
care.
3. Utilization of §166.046’s procedure does not deprive T.L.’s

mother of her parental rights.
Finally, Appellants and the State assert that Cook Children’s use of §166.046
will deprive T.L.’s mother of her constitutional liberty interest in making decisions
about the care of her child. As with her right to make medical decisions, the mother’s
right to make decisions about her child does not extend to forcing physicians to
participate in providing artificial life-support against their will. See DeShaney, 489
U.S. at 198–99. Neither Appellants nor the State cite any contrary authority.
Similarly, if the mother’s parental rights are terminated by T.L.’s death, the
cause of that termination is the severe medical conditions from which T.L. suffers,
not Cook Children’s conscientious refusal to provide artificial life-support or its use
of §166.046’s procedure.
B. Cook Children’s is not a state actor.
Cook Children’s is an indisputably private entity. E.g., 2RR314. Nevertheless,
Appellants and the State attempt to characterize Cook Children’s as a state actor with
provide a statutory level of care to patients before releasing them. But the fact that this affirmative
obligation is a statutory mandate underscores the lack of constitutional obligation at issue here.
Plaintiffs have never made an EMTALA claim.
43
respect to its use of §166.046’s procedure. Private conduct is attributable to the State
only in the most remarkable circumstances. This is because the sharp division
between private and governmental conduct “preserves an area of individual freedom
by limiting the reach of federal law and federal judicial power.” Lugar, 457 U.S. at
936. Thus, courts that have considered facts similar to those of this case have
emphatically rejected state-action arguments.
Klavan v. Crozer-Chester Medical Center, 60 F. Supp.2d 436 (E.D. Pa. 1999),
is instructive. In that case, a patient’s advance medical directive prohibited doctors
from taking aggressive life-saving care or keeping him in a persistent vegetative
state. See id. at 439–40. The patient’s doctors, working at a private hospital, ignored
that directive and took action the patient forbade. Id.
Like Appellants, the patient’s guardian sued under §1983, alleging a violation
of his due process right to refuse unwanted medical treatment. Id. at 440. The court
dismissed the claim, finding that the hospital and doctors were not “state actors”—
even though a Pennsylvania statute compelled the hospital to either comply with the
patient’s advance directive or attempt to transfer him. Id. at 443–44. Like Klavan,
this case concerns a private hospital, regulated by State law, that is accused of acting
contrary to the patient’s surrogate’s wishes. The same result should obtain: Cook
Children’s actions are not attributable to the State.
44
Klavan is especially instructive because the Supreme Court has explained that
“examples may be the best teachers” in determining whether a particular private
person can be deemed a state actor. Brentwood Acad. v. Tennessee Secondary Sch.
Athletic Ass’n, 531 U.S. 288, 296 (2001). It is thus telling that for all the cases
Appellants and the State cite, they describe none of their facts in detail. Indeed, they
cannot point to any case whose facts support their state-action argument:
• Appellants can point to no case in which a private hospital’s provision or

withholding of medical treatment made it a state actor. Contra Klavan, 60
F. Supp.2d at 443–44.
• Appellants can point to no case in which a medical provider’s action

pursuant to a statutory or regulatory scheme made it a state actor. Several
cases establish the contrary. E.g., Blum v. Yaretsky, 457 U.S. 991 (1982)
(transfer of patients pursuant to Medicaid utilization requirements was not
state action).
• Appellants can point to no case in which a private hospital was deemed to

be a state actor simply because it received public funding. Many cases
establish the contrary. E.g., id. at 1008; Hodge v. Paoli Mem’l Hosp., 576
F.2d 563, 564 (3d Cir. 1978) (per curiam) (collecting cases).
• Finally, Appellants can point to no case (whether in a medical context or

otherwise) in which a private party’s benefiting from a statutory immunity
scheme made it a state actor. Many cases explicitly reach the opposite
conclusion. E.g., Goss v. Memorial Hosp. Sys., 789 F.2d 353, 356 (5th Cir.
1986) (immunity for medical peer review committees did not make them
state actors).
Unable to find a single case supporting their state-action position, Appellants
and the State resort to cherry-picking favorable one-liners from Supreme Court
decisions. Removed from their factual context, these quotations make Appellants’
and the State’s state-action arguments appear superficially plausible. There is a good
45
reason Appellants and the State avoid these cases’ facts: when they are closely
examined, Appellants’ and the State’s state-action arguments fall apart.18
1. A private party’s use of a State-created procedure is not state

action.
Appellants focus their state-action arguments on the fact that the State created
the §166.046 procedure. In analyzing this argument, this Court must remember that
§166.046 provides a discretionary, not mandatory, procedure; it issues no directives
to any physician or hospital. See TEX. HEALTH & SAFETY CODE §166.045(c)
(providing that if an attending physician does not wish to follow the procedure
established under §166.046, life-sustaining treatment must be provided, but only
until a reasonable time has been afforded for the patient’s transfer). The Supreme
Court has repeatedly held that “[a]ction taken by private entities with the mere
approval or acquiescence of the State is not state action.” American Mfrs. Mut. Ins.
Co. v. Sullivan, 526 U.S. 40, 52 (1999) (emphasis added); accord Blum, 457 U.S. at
1004–05; Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 154–55 (1978); Jackson v.
Metro. Edison Co., 419 U.S. 345, 357 (1974).
18
The state-action inquiry has two parts. First, the deprivation must have been “caused by the
exercise of some right or privilege created by the State”; and second, “the party charged with the
deprivation must be a person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil
Co., 457 U.S. 922, 937 (1982) (emphasis added). Appellants and the State focus mostly on the
second prong, but their argument fails at the first. Here, even assuming there is a deprivation, it is
not caused by a State-created right. Rather, it is caused by a private healthcare provider’s
preexisting right not to provide services to another private person she deems inconsistent with her
conscience, judgment, or ethics. Cook Children’s may exercise this right regardless of §166.046’s
safe-harbor process.
46
Indeed, the “[p]rivate use of state-sanctioned private remedies or procedures
does not rise to the level of state action.” Tulsa Prof’l Collection Servs., Inc. v. Pope,
485 U.S. 478, 485–86 (1988); accord Flagg Bros., 436 U.S. at 161–62. A physician
or hospital making use of §166.046 is doing no more than using a State-provided
remedy; the physician or hospital does not receive the type of “overt, significant
assistance of state officials” that creates state action. Pope, 485 U.S. at 485–86; cf.
id. at 487 (finding state action in private use of probate procedure, where probate
court was “intimately involved” throughout each stage of the procedure’s operation);
Lugar, 457 U.S. at 941 (holding that private use of prejudgment-attachment
procedure constituted state action, where acts by sheriff and court clerk showed
“joint participation with state officials in the seizure of disputed property”); Georgia
v. McCollum, 505 U.S. 42, 51–52 (1992) (finding state action in criminal defendant’s
use of racially discriminatory peremptory challenges because, without the court’s
participation and enforcement, there would be no peremptory challenges);
Edmonson v. Leesville Concrete Co., 500 U.S. 614, 615 (1991) (same, in a civil
case).
Even compliance with a mandatory procedure does not implicate state action.
Consider Blum v. Yaretsky, which both Appellants and the State cite without
mentioning its close similarity to this case. In Blum, “a class of Medicaid patients
challeng[ed] decisions by the nursing homes in which they reside[d] to discharge or
47
transfer [them] without notice or an opportunity for a hearing.” 457 U.S. at 993.19
Federal law required nursing homes to establish utilization review committees to
“periodically assess[] whether each patient is receiving the appropriate level of care,
and thus whether the patient’s continued stay in the facility is justified.” Id. at 994–
95. The Blum plaintiffs were found by their respective URCs to not require a higher
level of care and were therefore transferred to other institutions in accordance with
the statutory procedure. Id. at 995.
Even so, the Supreme Court held that there was no state action: the nursing
homes, not the state, initiated the reviews and judged the patients’ need for care on
their own terms, not on terms set by the state. The nursing homes’ decisions
“ultimately turn[ed] on medical judgments made by private parties according to
professional standards that are not established by the State.” Id. at 1008; id. at 1010
(“[T]hose regulations themselves do not dictate the decision to discharge or transfer
in a particular case.”). 20
19
Blum, which concerned Medicaid patients and regulations, refutes Appellants’ argument that,
by providing Medicaid-funded care, “Cook [Children’s] is an arm of the State.” Appellants’ Br.
31 n.26. Consistent with Blum, courts have consistently rejected the argument that a hospital is a
state actor because it receives Medicaid, Medicare, or other public funding. E.g., Wheat v. Mass,
994 F.2d 273, 275–76 (5th Cir. 1993); Hodge v. Paoli Mem’l Hosp., 576 F.2d 563, 564 (3d Cir.
1978) (per curiam); see also Rendell-Baker v. Kohn, 457 U.S. 830, 840 (1982) (holding that private
school was not state actor despite receiving most of its funding from the State).
20
Following Blum and Flagg Brothers, the Fifth Circuit has held that private psychiatric hospitals
do not become “state actors” when they hold patients pursuant to civil commitment statutes. Bass
v. Parkwood Hosp., 180 F.3d 234, 241–43 (5th Cir. 1999) (private hospital acting pursuant to
Mississippi involuntary commitment statute was not “state actor” for purposes of section 1983
action); see also Lewis v. Law-Yone, 813 F. Supp. 1247, 1254 (N.D. Tex. 1993) (patient’s section
48
As in Blum, the decision to abstain from providing medically unnecessary
artificial life-support —and thus whether to initiate the §166.046 procedure—
originates with the physician, who acts according to his own conscience, expertise,
and ethics. See Blum, 457 U.S. at 1009 (noting that nursing homes’ transfer decisions
were based on judgments that “the care [the patients] are receiving is medically
inappropriate”). As in Blum, the State does not determine when or for what reasons
a physician may invoke the §166.046 procedure, nor does it “dictate the decision to”
withdrawal or continue artificial life-support. Id. at 1010. And unlike in Blum, use
of §166.046 is permissive, even for physicians wishing to abstain. This case thus fits
easily within Blum’s no-state-action holding.
West v. Akins, which the State also briefly mentions, State’s Br. 23, provides
a useful counterpoint to Blum and demonstrates the unusual circumstances that must
be present to deem a private healthcare provider a state actor. West concerned a
“private physician” who “provided orthopedic services to inmates” pursuant to a
contract with the State. 487 U.S. 42, 44 (1988). The patients he treated were “not
free to employ or elect to see a different physician.” Id.
1983 claim against private psychiatric hospital and doctors failed because they were not “state
actors,” even though suit concerned their compliance with voluntary commitment procedures
established by Texas statute). “Merely because a state provides a scheme by which private parties
can effectuate a process does not mean that the private parties become state actors by implementing
such a process.” Lewis, 813 F. Supp. at 1255.
49
The Court held that the doctor was a state actor, but it did so on extremely
narrow grounds. Because the plaintiff was incarcerated, meaning that the plaintiff
could only receive care from the doctors the state chose, the state owed the plaintiff
“an affirmative obligation to provide adequate medical care. Id. at 55–56. Even
though the physician was not a state employee, the state used him to “fulfill [its own]
obligation” to the prisoner. Id. at 55. Thus, the plaintiff’s “deprivation was caused,
in the sense relevant for state-action inquiry, by the State’s exercise of its right to
punish [the plaintiff] by incarceration and to deny him a venue independent of the
State to obtain needed medical care.” Id. (emphasis added). In other words, in
treating the patient, the physician was a tool of the state.
This case resembles Blum, not West. Appellants are free to seek medical care
outside of Cook Children’s, which has in fact provided them enormous assistance in
their search for a different facility. More important, Cook Children’s is in no sense
acting in the State’s stead. The State is not even constitutionally obligated to provide
T.L. medical care, much less is Cook Children’s providing such care on the State’s
behalf.
Cook Children’s is a private hospital that has utilized a State-created voluntary
remedy. No precedent holds that, in doing so, it becomes a state actor.
50
2. The State’s provision of safe harbor does not make Cook
Children’s a state actor.
Both Appellants and the State place great emphasis on the fact that a
healthcare provider that utilizes §166.046’s procedure has safe harbor from civil,
criminal, and professional liability. Indeed, the State characterizes this as a type of
“encouragement” that further state action. Again, the cases Appellants and the State
cite do not support their arguments.
In Flagg Brothers, the Supreme Court held that a person does not become a
state actor because he uses a state-provided remedy that gives him safe harbor. In
that case, the plaintiff sued to stop a warehouse from selling, pursuant to a
warehouseman’s lien, goods she had abandoned at the warehouse. See 436 U.S. at
153–54. Like in this case, state law provided the warehouse a procedure for making
the sale and absolved it from liability if it complied. See id. at 151 n.1. The Court
rejected the argument that the statute, or the state’s decision to deny relief against
the warehouse, constituted state action:
If the mere denial of judicial relief is considered sufficient

encouragement to make the State responsible for those private acts, all
private deprivations of property would be converted into public acts
whenever the State, for whatever reason, denies relief sought by the
putative property owner.
Id. at 165. As in Flagg Brothers, the Legislature’s mere “denial of judicial relief”
where a physician complies with §166.046 does not “convert[]” the physician’s
decision “into [a] public act[].” Id.
51
Coming even closer to this case’s precise facts, the Fifth Circuit has applied
Flagg Brothers to a medical peer-review committee. In Goss, 789 F.2d at 356, the
court considered a provision of the Texas Medical Practice Act that immunized
hospitals’ medical peer review committees from civil liability for reporting
physician incompetency to the Board of Medical Examiners. 21 The plaintiff argued
“that this immunity granted appellees by the State of Texas provided such
encouragement to appellees that the peer review committee acted as an investigatory
arm of the state.” Id. The Fifth Circuit rejected this argument, writing that the
conferral of immunity “did not make the action of appellees state action.” Id.
Similarly, in White v. Scrivner Corp., 594 F.2d 140, 141 (5th Cir. 1979), the
Fifth Circuit considered whether a grocery store security guard’s detention of a
shoplifter constituted state action. The plaintiff relied on a Louisiana statute
“insulating merchants from liability for detention of persons reasonably believed to
be shoplifters.” Id. at 143. The court held that Flagg Brothers “require[d] rejection
of this argument.” Id. Noting that the statute allowed, but did “not compel merchants
to detain shoplifters,” the court held that the immunity statute could not constitute
state action. Id. (emphasis added).
21
An amended version of this statute is codified at TEX. OCC. CODE §160.010.
52
The State’s “encouragement” argument adds nothing to this analysis.
According to the State, the safe-harbor provision is an “incentive” that “strongly
encourages providers to follow section 166.046’s committee-review procedure.”
State’s Br. 21–22. The State relies foremost on Blum, which—when its facts are
considered—actually negates the State’s argument. In Blum, unlike here, the nursing
homes’ use of the utilization-review-committee procedure was mandatory. It still
did not constitute state action because the decision when to invoke the procedure
belonged exclusively to the hospital, and the “State is simply not responsible for that
decision.” See 457 U.S. at 1008 n.19. Likewise, here, Cook Children’s alone decides
when the surrogate’s desires and the physicians’ conscience are sufficiently in
conflict to initiate the procedure, and the committee makes a decision for the private
hospital using its own private criteria. The State has no role in, and is not responsible
for, these decisions.
Similarly, the Court explained in American Manufacturers that while the
State’s creation of a remedy and incentives for using it can “be seen as
encourag[ement]” in some sense, “this kind of subtle encouragement is no more
significant than that which inheres in the State’s creation or modification of any legal
remedy.” 526 U.S. at 53. But the Court has “never held that the mere availability of
a remedy for wrongful conduct, even when the private use of that remedy serves
important public interests, so significantly encourages the private activity as to make
53
the State responsible for it.” Id.; accord Flagg Bros., 436 U.S. at 165 (“If the mere
denial of judicial relief is considered sufficient encouragement to make the State
responsible for those private acts, all private deprivations of property would be
converted into public acts whenever the State, for whatever reason, denies relief
sought by the putative property owner.”).
Because §166.046 is a permissive statute, initiated at a physician’s sole
option, and because it does no more than withhold a tort action, there is no
encouragement or participation rising to the level of state action.
3. There is no State coercion sufficient to deem Cook Children’s

actions those of the State.
Relying again on Blum and American Manufacturers, the State argues that
§166.046’s procedure “is predicated on the State’s exercise of coercive power over
the provider,” namely its requirement that a provider maintain the status quo (i.e.,
continue to provide artificial life-support) while it utilizes the §166.046 procedure
or otherwise gives the patient a reasonable time to seek transfer. State’s Br. 21.
Neither case the State cites supports its argument, which would convert a vast array
of private conduct into State action.
It is true that Blum mentioned in passing that the State “can be held responsible
for a private decision” if “it has exercised coercive power . . . [such] that the choice
must in law be deemed to be that of the State.” 457 U.S. at 1004. Yet the
circumstances in Blum, which resemble those in this case more than any other
54
Supreme Court decision, were deemed not to constitute coercion of that level despite
the fact that the procedure at issue was mandatory.
No less than the §166.046 procedure, the utilization-review-committee
procedure in Blum could be seen as “use[ of] the coercive power of [federal] law to
control the provision of care.” State’s Br. 21. After all, the effect of the regulations
in that case was to determine whether the nursing homes’ patients would continue
to receive care or would be discharged. See 457 U.S. at 1005. Thus, the federal
government “insert[ed] itself into the dispute” between the patient and the nursing
home without converting the home’s private conduct into state action. State’s Br.
21.
The State’s coercion argument ultimately fails because it misunderstands what
the Supreme Court means by the term “coercion.” Coercion does not occur because
the State has regulated a private party or given it the power to take some optional
action. It exists when the private party was coerced into making the specific decision
for which it is sued—here, withdrawing medically unnecessary artificial life-
support. See, e.g., San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee,
483 U.S. 522, 547 (1987) (holding that the Olympic Committee’s enforcement of its
government-granted trademark rights was not state action because there was “no
evidence that the Federal Government coerced or encouraged the [Committee] in the
exercise of its right” (emphasis added)); S.P. v. City of Takoma Park, Md., 134 F.3d
55
260, 270 (4th Cir. 1998) (holding that use of involuntary-commitment statute did not
constitute coercion because the statute, “while providing guidelines to mental health
care providers, does not coerce, or even encourage, physicians to involuntarily
commit individuals”). Contra Sanchez v. Pereira-Castillo, 590 F.3d 31, 52 (1st Cir.
2009) (holding that coercion sufficient to attribute a private party’s action to the state
existed where a private physician was conscripted by the State to perform
exploratory surgery on a person in State custody).
This case is devoid of coercion of this type: the State did not coerce Cook
Children’s into invoking §166.046’s procedure; more important, the State did not
coerce the ethics committee into deciding that providing further medically
inappropriate artificial life-support was unethical. 22 Those decisions—which are the
basis for Appellants’ claims—belong exclusively to Cook Children’s.
As Blum’s holding suggests, the State’s coercion argument proves far too
much. Nearly every private transaction is shaded in some way by State regulation,
which (as in this case) may provide minimum standards or limits that the parties’
private contract may not cross. What the State argues—remarkably—is that when it
22
The so-called coercion the State identifies is the Act’s requirement that Cook Children’s
maintain the status quo (i.e., provide life-sustaining care) while the §166.046 procedure is utilized
or while it seeks to transfer a patient. Appellants do not sue Cook Children’s for maintaining the
status quo. Furthermore, that provision of the Act is merely declaratory of the common law, which
likewise required a physician to give a patient a reasonable opportunity to transfer before the
physician terminated the doctor-patient relationship.
56
sets a minimum standard with which a party must comply in dealing with other
private persons, the State “becomes a party” to that transaction such that the
regulated party’s actions are attributable to the State. See State’s Br. 21. If this
argument were taken seriously, nearly all private actors in regulated professions
would become state actors, from doctors regulated by the Texas Medical Board, to
attorneys governed by the State Bar and the Rules of Professional Conduct—and
even to hairstylists, dieticians, and tow truck operators regulated by the Texas
Department of Licensing and Regulation.
Because Cook Children’s decision to refuse to provide medically
inappropriate artificial life-support was not coerced, the State’s argument fails.
4. Cook Children’s has not been delegated a unique

governmental function.
A private party’s conduct can be attributed to the State when the private actor
performs a function that is “traditionally the exclusive prerogative of the State.”
Jackson, 419 U.S. at 353 (emphasis added). For somewhat different reasons,
Appellants and the State argue that this test has been met. It has not.
The functions that satisfy this test for state action are those “traditionally
associated with sovereignty.” Id. The test is “exceedingly difficult to satisfy.”
MARTIN A. SCHWARTZ, SECTION 1983 LITIG. CLAIMS & DEFENSES §5.14[A]. The
Court has “rejected reliance upon the doctrine in cases involving”:
57
coordination of amateur sports, the operation of a shopping mall, the
furnishing of essential utility services, a warehouseman’s enforcement
of a statutory lien, the education of maladjusted children, the provision
of nursing home care, and the administration of workers’ compensation
benefits.
Id. (footnotes omitted). Nothing Cook Children’s does satisfies this exceedingly
difficult standard.
The State primarily argues that in utilizing the §166.046 procedure, a hospital
ethics committee “mimics a state adjudicatory body.” State’s Br. 23; see also
Appellants’ Br. 30–31. What the State means is that the committee reviews the
circumstances and makes a decision. In doing so, however, the committee acts
nothing like a court—because it was not intended to be one. Rather, ethics
committees—fixtures in most hospitals—opine on questions of medical practice and
ethics, which is what the committee does under §166.046. They have no judicial
function and do not apply the law—a fact that remains true under §166.046, which
does not ask the committee to resolve any legal question, only medical and ethical
ones.
Importantly, medical decision-making—which is what this case and section
166.046 more generally involves—is a quintessentially private function. See Blum,
457 U.S. at 1011 (“We are also unable to conclude that the nursing homes perform
a function that has been traditionally the exclusive prerogative of the State.” (internal
quotation marks omitted)). Even when overlaid with state regulation, a hospital’s
58
decisions are its own—especially when they concern the ethics or medical
appropriateness of providing care. See id. 1011–12 (holding that even if the state
were obligated to provide nursing home services, “it would not follow that decisions
made in the day-to-day administration of a nursing home are the kind of decisions
traditionally and exclusively made by the sovereign”).
Section 166.046 is a voluntary process for determining whether to terminate
the doctor-patient relationship in a particularly fraught context. Decisions about
whether to enter into and leave doctor-patient relationships represent a private
negotiation between doctor and patient. 23 The state has not “traditionally” had a hand
in defining that relationship’s contours, must less has it been the state’s “exclusive
prerogative.” Rather, a doctor’s decision to terminate that relationship is left to his
medical judgment and conscience, provided that he conforms to a non-statutory code
of medical ethics. These private, personal decisions are not—and never have been—
regarded as public functions. The doctors and hospital ethics committees who make
these decisions are not state actors, and no due process interest is implicated.
23
The State recognizes that this decision is made by a private party—Cook Children’s—without
the State’s involvement. It thus attempts to cast the State’s exclusion from this decision as a form
of state action by labeling Cook Children’s private decision-making a form of “exclusive
jurisdiction.” State’s Br. 23. This is pure sophistry. Private parties always have “exclusive
jurisdiction” over whether to enter into or exit relationships with other private parties, but this does
not convert their decision-making process about whether to do so into state action.
Furthermore, because the physician-patient relationship has traditionally been regarded as

private, the State has not “outsource[d] adjudication” of that private dispute to private parties.
State’s Br. 24. It never had a role in the dispute in the first place, let alone an exclusive role.
59
Furthermore, adjudication in the sense in which the State uses it—an entity
reviewing a person’s decision, affirming it or not, and explaining its reasoning—is
not in any sense exclusive to the State. To take just one example among thousands,
every corporate human-resources department uses a similar process in determining
whether an employee should face discipline. They are not state-actors for doing so.
See Klunder v. Brown Univ., 778 F.3d 24, 32–33 (1st Cir. 2015) (holding that a
private university’s “internal disciplinary” process did not constitute state action).
Indeed, even the adjudication of legal disputes—which this case does not present—
is often done by private parties, such as mediators and arbitrators, who are not state
actors. See Davis v. Prudential Secs., Inc., 59 F.3d 1186, 1191 (11th Cir. 1995)
(“agree[ing] with the numerous courts that have held that the state action element of
a due process claim is absent in private arbitration cases”); accord Tulsa Prof’l, 485
U.S. at 485 (“Private use of state-sanctioned private remedies or procedures does not
rise to the level of state action.”). 24
***
Cook Children’s is using a traditionally private mechanism (a hospital ethics
committee) to make a traditionally private decision (whether to provide medical
24
In more inflammatory fashion, Appellants argue that Cook Children’s is a state actor because,
in withdrawing medically unnecessary care, it acts as an “executioner[].” Appellants’ Br. 33.
Beyond misunderstanding how §166.046 functions, this argument fails for the same reason as the
State’s: whether and when to withdraw care is a traditionally private function.
60
care) using traditionally private standards (medical judgment and ethics). That it is
doing so using a voluntary statutory procedure does not make it a state actor. Blum,
457 U.S. at 1011–12.
PRAYER
Appellee respectfully requests that the Court affirm the trial court’s denial of
a temporary injunction.
61
Respectfully submitted,
/s/ Amy Warr

Amy Warr
awarr@adjtlaw.com
Nicholas Bacarisse
nbacarisse@adjtlaw.com
ALEXANDER DUBOSE & JEFFERSON LLP
515 Congress Avenue, Suite 2350
Austin, Texas 78701-3562
Telephone: (512) 482-9300
Facsimile: (512) 482-9303
Thomas M. Melsheimer
Texas Bar No. 13922550
tmelsheimer@winston.com
Steven H. Stodghill
State Bar. No. 19261100
sstodghill@winston.com
Geoffrey S. Harper
gharper@winston.com
John Michael Gaddis
mgaddis@winston.com
Dallas, Texas 75201
Telephone: (214) 453-6500
Facsimile: (214) 453-6400
ATTORNEYS FOR APPELLEE
62
CERTIFICATE OF COMPLIANCE
Based on a word count run in Microsoft Word 2016, this brief contains 14,384
words, excluding the portions of the brief exempt from the word count under Texas
Rule of Appellate Procedure 9.4(i)(1).
/s/ Amy Warr

Amy Warr
63
CERTIFICATE OF SERVICE
On January 21, 2020, I electronically filed this brief with the Clerk of the
Court using the eFile.TXCourts.gov electronic filing system which will send
notification of such filing to the following (unless otherwise noted below).
Joseph M. Nixon Kyle D. Hawkins

State Bar No. 15244800 Solicitor General
joe@nixonlawtx.com State Bar No. 24094710
THE NIXON LAW FIRM, P.C. Kyle.Hawkins@oag.texas.gov
6363 Woodway, Suite 800 Bill Davis
Houston, Texas 77056 Deputy Solicitor General
Telephone: (713) 550-7535 Bill.Davis@oag.texas.gov
OFFICE OF THE ATTORNEY GENERAL
Emily Cook P.O. Box 12548 (MC 059)
State Bar No. 24092613 Austin, Texas 78711-2548
emily@emilycook.org Telephone: (512) 936-1700
THE LAW OFFICE OF EMILY Facsimile: (512) 474-2697
KEBODEAUX COOK
4500 Bissonnet ATTORNEYS FOR AMICUS CURIAE
Bellaire, Texas 77401 THE STATE OF TEXAS
Telephone: (281) 622-7268
ATTORNEYS FOR APPELLANTS
/s/ Amy Warr

Amy Warr
64

Cook Children's Brief of Appellee

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ACCEPTED

IN THE SECOND COURT OF APPEALS

T.L., A MINOR AND HER MOTHER, ON HER BEHALF,

COOK CHILDREN’S MEDICAL CENTER,

On Appeal from the 48th District Court

Thomas M. Melsheimer Amy Warr

ATTORNEYS FOR APPELLEE

Appellants: T.L., a minor, and her mother, on her behalf.

Trial & Appellate Counsel: Joseph M. Nixon

Kassi Dee Patrick Marks

Appellee: Cook Children’s Medical Center

Trial and Appellate Counsel: Thomas M. Melsheimer

Identity of Parties and Counsel ..................................................................................i

Statement of the Case................................................................................................x

Issues Presented .......................................................................................................xi

Statement Regarding Oral Argument .................................................................... xii

A. T.L.’s health is severely compromised. ...............................................3

B. T.L. has been afforded aggressive, state-of-the-art treatment at

C. After the July 2019 crisis, T.L.’s already-slim hopes for

D. Continued treatment in the CICU causes T.L. to suffer.......................7

E. Performing painful intervention on T.L. with no clinical benefit

F. The CICU staff made comprehensive efforts to transfer T.L. to

G. At an impasse, the CICU physicians requested a consult from

H. The Ethics Committee determined that Cook Children’s could

I. T.L.’s mother sued Cook Children’s. .................................................13

A. Physicians have a common-law right to refuse to provide care

B. Section 166.046 was enacted to help resolve private

II. Appellants’ constitutional claims are premised on a misreading of

A. Section 166.046 is a voluntary safe-harbor provision that does

B. A means of challenging §166.046’s constitutionality is

III. Section 166.046’s procedure is constitutional. .............................................33

2. Utilization of the §166.046 procedure does not deprive

3. Utilization of §166.046’s procedure does not deprive

2. The State’s provision of safe harbor does not make Cook

4. Cook Children’s has not been delegated a unique

Certificate of Compliance .......................................................................................63

Certificate of Service ..............................................................................................64

American Mfrs. Mut. Ins. Co. v. Sullivan,

Baby F. v. Oklahoma Cnty. Dist. Ct.,

Butnaru v. Ford Motor Co.,

Cruzan v. Director, Mo. Dep’t of Health,

Edmonson v. Leesville Concrete Co.,

Flagg Bros., Inc. v. Brooks,

Hodge v. Paoli Mem’l Hosp.,

Jackson v. Metro. Edison Co.,

Jenkins v. Colorado Mental Health Inst. at Pueblo,

Johnson ex rel. Johnson v. Thompson,

Klavan v. Crozer-Chester Med. Ctr.,

Klunder v. Brown Univ.,

Logan v. Zimmerman Brush Co.,

Methodist Healthcare Sys. of San Antonio, Ltd. v. Rankin,

Patel v. Texas Dep’t of Licensing & Regulation,

Republican Party of Tex. v. Dietz,

S.P. v. City of Takoma Park, Md.,

San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm.,

Simi Inv. Co. v. Harris Cty., Tex.,

University of Tex. Med. Sch. at Hous. v. Than,

White v. Scrivner Corp.,

Yancy v. United Surgical Partners Int’l, Inc.,

Statutes and Constitutional Provisions

Emergency Medical Treatment and Labor Act, 42 U.S.C. §1395dd.......................41

TEX. CONST. art. I, §19 .............................................................................................32

TEX. HEALTH & SAFETY CODE §§166.001–.166 ......................................................26